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Is there institutional disharmony in the Fourth Circuit? That’s the question that one judge suggested, in a concurring opinion, that lawyers and judges might be asking after an en banc opinion released on Tuesday.  In response, the judge whose dissenting opinion prompted the question submitted that the apparent tension we are witnessing within the Court is simply a “vigorous exchange of views over basic and fundamental principles of law,” and that such a “robust” exchange enhances “mutual respect and collegiality.”… Continue Reading

A while back I wrote about the collateral order doctrine as discussed by the Fourth Circuit in Williams v. Strickland. (See prior blog post here).  Williams involved an alleged excessive force claim against a law enforcement officer and an interlocutory appeal from the denial of the officer’s motion for summary judgment on the ground of qualified immunity.  The Court held that the officer was not entitled to qualified immunity (at least at that point in the case) because the established law is that the use of deadly force by an officer may be justified at one point in an encounter with a suspect, but unjustified a moment later in the same encounter. … Continue Reading

The federal corollary to the oft-blogged about “substantial right doctrine” in the North Carolina appellate courts is the “collateral order doctrine.”  As is the case under North Carolina law, the jurisdiction of the United States Circuit Courts of Appeals is generally limited to final decisions of the district court.  Therefore,  a federal appellate court ordinarily cannot review interlocutory orders.  But, as in North Carolina, there are exceptions. … Continue Reading

Tuesday’s batch of opinions from the Court of Appeals contained a smorgasbord of jurisdictional issues pertaining to interlocutory appeals. In no particular order:

Department of Transportation v. Riddle

This condemnation proceeding involved a partial taking by the North Carolina Department of Transportation (“DOT”). The Riddles owned a parcel of land that they had subdivided into seven separate lots. The DOT originally commenced the action by filing a complaint and declaration of taking for portions of Lot 2 and Lot 7. … Continue Reading

When a local board of adjustment makes an adverse land-use decision on a landowner’s application for a conditional use permit or a variance, a special statute kicks in to dictate the procedures for seeking further review. Section 160A-393 governs such “appeals of quasi-judicial decisions of decision-making boards” by directing appeals to be filed in the superior court “in the nature of certiorari.” … Continue Reading

In a decision that promises to have a substantial impact for counties and municipalities struggling to reconcile North Carolina’s Open Meetings Law and its Public Records Act, the Court of Appeals yesterday dropped a compelling footnote providing guidance to trial courts confronted with this issue in the future.

In Times News Publishing Co. v. Alamance-Burlington Bd. of Ed., the Court was confronted with a situation in which minutes of a public body’s closed session were sought pursuant to the Public Records Act and the public body objected to disclosure of such minutes because disclosure would “frustrate the purpose of the closed session” pursuant to the Open Meetings Law. … Continue Reading

In a pair of unrelated cases, the Supreme Court of North Carolina has curtailed the ability of local governments to regulate towing prices and the use of cell phones while driving on the one hand, while endorsing a broad view of governmental immunity on the other.

Let’s start with King v. Chapel Hill, a potentially far-reaching case that appears to restrict the powers of municipal governments to use ordinances to further the public good.… Continue Reading