Petition for Rehearing

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Another week, another published ruling on an en banc rehearing petition from the Fourth Circuit.  Last week we saw Judge Niemeyer arguing in a published concurring opinion that en banc review should be denied so that the case of Gavin Grimm could proceed more quickly to the Supreme Court.  (Conversely, Judge Wynn concurred with the denial on the grounds that the panel majority was completely consistent with Supreme Court’s recent precedent, and thus there was no need for further review at all, by any court.)   … Continue Reading

A few years ago I wrote about The Curious Cases(s) of the Published Denial of Rehearing.  In that post,  which focused on two published denials of rehearing from the Fourth Circuit in the span of a week, I noted a prior instance of this relatively rare occurrence in the much publicized case of Gavin Grimm (then known in the caption as “G.G.”),… Continue Reading

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

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

Appellate practitioners are familiar with the concept of moving to have the court publish an opinion that was initially issued as “unpublished.”  Much rarer is the reverse situation, where a party seeks to have an opinion that was published “demoted” to unpublished status.  And perhaps even rarer is to have that request for “unpublishing” made by a member of the Court. … Continue Reading

Twice this week the Fourth Circuit took the relatively unusual step of issuing published opinions on orders denying rehearing of a case.  Ordinarily such orders are not published for the simple reason that there is no accompanying written opinion to publish.  Not so this week, however.

On Monday the Court denied a request for panel rehearing and rehearing en banc in US v.… Continue Reading

A Petition for Writ of Certiorari continues to be the most powerful tool in the Supreme Court’s arsenal.  Last Friday, the North Carolina Supreme Court used its certiorari authority to revive an appeal involving the State Bar and a sitting superior court judge.  The Court did so six months after the appeal was dismissed by the Court of Appeals, and four months after it had declined to issue a PDR.… Continue Reading

No tattling allowed if someone buys scalped tickets to attend this event. For the first time since the Civil War era, the Supreme Court of North Carolina is preparing a westward trek to Morganton, North Carolina for two oral argument sessions. The ticket-only event will occur on Tuesday, May 17, and Wednesday, May 18 in the Old Burke County Courthouse.

Cases being heard include a challenge by the Cleveland County Schools System to the funding of charter schools and a constitutional challenge to a statute changing control of Asheville’s water system from the city to the metropolitan sewer district.… Continue Reading

Petitions for Rehearing pursuant to Rule 31 of the North Carolina Rules of Appellate Procedure are rarely allowed in the Court of Appeals. Anecdotal evidence suggests that the Court allows fewer than five percent annually, and the percentage may be as low as one percent. Given that, if the Court allows a Petition for Rehearing one might conclude that the reason for rehearing is because the Court intends to change its original decision.… Continue Reading