On Wednesday, the General Assembly overrode the Governor’s veto of House Bill 239. Against opposition from the bench and the bar, the legislature pushed the court-shrinking bill through on a mostly party–line vote. The override votes came on the heels of a remarkable move by retiring Judge Douglas McCullough–a registered Republican–who reportedly retired a month early to avoid having his seat eliminated by the bill.… Continue Reading
On occasion, the Supreme Court of North Carolina will grant a petition for discretionary review and then later decide that the grant was “improvidently allowed.” See, e.g., here and here and here. The U.S. Supreme Court sometimes reaches the same result.
Because these opinions usually provide little, if any, explanation, we are often left to guess at the basis for the court’s decision.… Continue Reading
Last week I wrote about the Court of Appeals’ holding in SED Holdings, LLC v. 3 Star Properties, LLC regarding the jurisdiction of the trial court while an interlocutory appeal is pending. See here. A few weeks prior, before the SED II opinion was released, Mack Sperling provided some excellent insight on his blog as to what was happening in the trial court in SED and how the court’s jurisdiction was impacted by the Petition for Discretionary Review that defendants had filed (and that was subsequently allowed) regarding the Court of Appeals’ decision in SED I. … 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
In October 2015, I blogged about In re Pike, a single Business Court order that resolved four consolidated actions. Because the actions were designated on different dates, the right to appellate review of this single order was split between the North Carolina Supreme Court and the North Carolina Court of Appeals. At the time, I suggested that a bypass petition was likely the best way to resolve this “perfect storm.”… Continue Reading
A party has an appeal of right to our Supreme Court from certain decisions of the Court of Appeals under N.C. Gen. Stat. § 7A-30. The overwhelming majority of those appeals of right are taken from Court of Appeals decisions in which there was a dissent. N.C. Gen. Stat. § 7A-30(2). Section 7A-30(2) has an oft-forgotten sibling, however. Section 7A-30(1) provides the right to appellate review by the Supreme Court of any decision of the Court of Appeals that “directly involves a substantial question arising under the Constitution of the United States or of this State.”… Continue Reading
Sometimes the juiciest info is found in the comments. In October, I blogged about State v. Biddix—a Court of Appeals’ opinion that appeared to significantly limit the Court of Appeals’ certiorari authority under Appellate Rule 21. Even though a state statute specifically granted a criminal defendant the right to challenge his guilty plea by writ of certiorari, the Biddix court held that this statutory authority was trumped by Appellate Rule 21, which does not specifically authorize review of guilty pleas by certiorari.… Continue Reading
Over the past few months, we have shared several potential problems created by the Business Court Modernization Act. Nonetheless, we held a few potential traps close to our vest because, frankly, we were unsure if any of the unique circumstances necessary to trigger the traps would arise. Recently, we changed our mind on the improbability of those scenarios based on an October 8 order from the North Carolina Business Court. … Continue Reading
There is an unwritten rule regarding the Supreme Court of North Carolina’s willingness to consider amicus input: Amicus briefs are welcomed during briefing on the merits, but the Court does not want to read amicus briefs supporting or opposing the granting of discretionary review. Does the same rule apply to amicus motions at the petition stage?
In at least two recent cases, the Supreme Court has granted a motion for leave to file an amicus brief when that motion was submitted alongside the petition for discretionary review. … Continue Reading