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
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
Fourth Circuit Judge Advocates for “Unpublishing” Panel Opinion, Simultaneously Lauds and Criticizes the Court
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are familiar with the concept of moving to have the court publish an opinion that was initially issued as “unpublished.” Much rarer is the reverse situation, where a party seeks to have an opinion that was published “demoted” to unpublished status.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
The Curious Case(s) of the Published Denial of Rehearing
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 Tool For All Seasons—Supreme Court Deploys Writ of Certiorari to Resurrect State Bar Dispute
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
Westward Bound: Supreme Court to Hold Two Sessions of Court in Morganton (Psst! A Showdown on an Important Issue of Appellate Procedure Could Occur)
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
Rehearing Does Not Mean A New Result
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