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
For the past 25 years, an oral argument before the United States Supreme Court was considered an oddity when an advocate managed to squeeze two or three sentences in before being interrupted by the bench. Last Thursday, the Supreme Court stunned the SCOTUS bar by noting in its newly revised “Guide for Counsel” that the justices “generally” will not ask questions of either party during the first two minutes of oral argument. … Continue Reading
I. You Can’t Have One Without the Other: Notice of Appeal Must Designate Both Final Judgment and Intermediate Order
Approximately three years ago, I blogged on Majerske v. Majerske, an unpublished Court of Appeals decision that dismissed an appeal for a notice of appeal defect. Reason: The notice of appeal identified the intermediate order that the appellant was challenging on appeal, but not the trial court order that converted the case into a final judgment.… Continue Reading
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
Suppose an appellate judge casts the deciding vote in a case, creating a majority in support of the lead opinion. Before the opinion is released, however, the judge retires or dies. Does his or her vote still count?
In federal court, no. In a North Carolina appellate court, yes.
Note: much of the information below comes from The American Lawyer’s October 23 “Daily Dicta,” by Jenna Greene.
He started as a pro se plaintiff alleging First Amendment (and other) violations by a number of federal judges, an FBI agent, and a US Marshal. Now William Bond has been represented by some of the heaviest of legal heavyweights as his case makes its way up towards the highest court in the land. … Continue Reading
Unlike some sites, this blog does not focus heavily on decisions from the U.S. Supreme Court. But last Friday’s decision in Ortiz v. United States on the breadth of the jurisdiction of the Supreme Court is a must-read for anyone interested in appellate practice and procedure.
As background, the petitioner in Ortiz was a member of the military who was convicted of a crime as part of a military court martial.… Continue Reading
In light of Matt’s post from yesterday, does anyone perceive an uptick in dismissals of appeals for notice of appeal problems? Are North Carolina lawyers unique in their propensity to screw up notices of appeal? Are dismissals for notice of appeal violations common in other appellate systems? Let’s say, for instance, the federal appellate courts? If not, why? Matt and I have been discussing and debating these questions for a few months. … 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
On Tuesday, the North Carolina Court of Appeals issued an opinion in Jackson/Hill Aviation, Inc. v. Town of Ocean Isle that reaffirmed the rule that North Carolina courts “cannot take judicial notice of municipal ordinances.” The practical effect of that rule, as played out in Jackson/Hill Aviation, is that unless a municipal ordinance is specifically mentioned in a plaintiff’s complaint, a defendant cannot use that ordinance to defeat the plaintiff’s complaint on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. … Continue Reading