Search results for: en banc

The Court of Appeals’ opinions from two weeks ago contain a hodgepodge of appellate nuggets that could not be ignored–despite the hustle and bustle of the impending holidays and the last two days excitement over breaking Supreme Court news.

Tetra Tech Tesoro, Inc. v. JAAAT Tech. Servs., LLC

First, We told you months ago that filing a Rule 59 motion after anything other than a trial can be dangerous.  That advice still stands

In Tetra Tech, the Court of Appeals held that a self-styled “Rule 59” motion to alter or amend a judgment does not toll a party’s deadline for filing a notice of appeal from an interlocutory order.  Providing one of the most detailed analyses to date on this issue, Judge Dietz also warned practitioners that Rule 59 likely “only applies to post-trial motions.”  While the opinion also states that Rule 59 “applies only after a trial on the merits or, at a minimum, a judgment ending a case on the merits,” don’t be surprised if Rule 59 does not toll your deadline for filing an appeal from any non-trial order—interlocutory or final.  Granted, conflicting Court of Appeals opinions exist on this last point. See, e.g., Rutherford Plantation, LLC v. Challenge Golf Grp. of Carolinas, LLC, 225 N.C. App. 79, 86, 737 S.E.2d 409, 414 (2013).  Thus, this issue seems well-suited for the Court of Appeals’ new en banc review authority.

Interestingly, while the appellant’s appeal from the underlying preliminary injunction order was dismissed as untimely, the Court of Appeals nonetheless reviewed the trial court’s denial of a motion to modify the preliminary injunction order. However, does a trial court’s interlocutory ruling on a motion to modify a preliminary injunction affect a substantial right? The Court of Appeals quoted case law stating that the preliminary injunction order affected a substantial right, but a motion to modify a preliminary injunction seems like it could be a different beast. For example, just because you have the right to immediate appellate review of an interlocutory order does not mean that there is a right to immediate appellate review of a motion to reconsider that order—especially if the party failed to timely appeal the underlying order.  On the other hand, the trial court did modify the preliminary injunction. Perhaps the Court of Appeals’ decision in this case reflects an understanding that by modifying the prior preliminary injunction, the trial court had superseded the earlier preliminary injunction order (making any appeal from the initial order moot?). Alternatively, perhaps facts arose between the granting of the preliminary injunction and the motion to modify that resulted in the order to modify implicating substantial rights.  In any event, I would be surprised if the Court was implying that all orders denying a motion to modify affect substantial rights.

That said, if the motion to modify had not been immediately appealable, the Court of Appeals would likely have reached a different outcome on the final Tetra Tech issue: whether the trial court erred in imposing sanctions on the appellant for violating the preliminary injunction order.  The Court of Appeals concluded that under N.C. Gen. Stat. § 1-294, the trial court lacked jurisdiction to conduct contempt proceedings and impose sanctions because the preliminary injunction order was being challenged on appeal. While noting that the General Assembly had recently amended § 1-294 to create exceptions to the general rule that an interlocutory appeal divests a trial court of jurisdiction, the opinion also noted that the Supreme Court had not yet amended the Appellate Rules in response to this statutory change.

One last note on Tetra Tech.  The opinion is careful to explain that the trial court is free on remand to conduct contempt proceedings and to generally manage this case.  However, the opinion concludes by handing out some free case management advice.  A central issue in this case is apparently whether a North Carolina statute that invalidates certain types of forum selection clauses is enforceable for federal construction projects. The opinion suggested that “before the parties in this action pursue multiple, costly parallel suits in parallel jurisdictions, at considerable waste of judicial resources, it might be sensible for the trial court to … determine whose law applies at the site of these projects and thus whether the forum selection clause is enforceable or not.”

State v. Ledbetter & State v. Biddix

Second, an update on State v. Biddix and State v. Ledbetter.  If you recall, one hot-bed issue in criminal law has been whether Appellate Rule 21’s failure to explicitly reference a particular form of certiorari review means that the Court of Appeals 1) does not have jurisdiction to hear these petitions, and 2) if it has jurisdiction, is the Court of Appeals required to invoke Appellate Rule 2 to hear these certiorari petitions? We previously blogged on these issues here , here, and here. The Supreme Court appeared ready to weigh into this arena again based on a dissent from Judge Geer in Biddix. However, right before oral argument, the Biddix defendant-appellant withdrew his appeal. (Sigh!)

The Supreme Court recently remanded Ledbetter I to the Court of Appeals for reconsideration in light of the Supreme Court’s opinions in Thomsen and Stubbs.  These cases held that if certiorari review is statutorily authorized, the appellate courts have jurisdiction to issue these writs even if Rule 21 fails to specifically authorize a particular type of writ review. On remand in Ledbetter II, the Court of Appeals stated in response to the remand:

Our initial opinion in this case neither denies, nor purports to limit, this Court’s jurisdiction to issue the writ under N.C. Gen. Stat. § 15A-1444(e), or any other statute.  The issue in the present case does not pertain to the existence of appellate jurisdiction under the statutes. Rather, the issue pertains to the “govern[ing] procedure” and processes available to properly exercise our jurisdiction and guide our discretion of whether to issue a writ of certiorari, following a defendant’s guilty plea. Defendant’s petition, purportedly under N.C. Gen. Stat. § 15A-1444(e), does not invoke any of the three grounds set forth in Appellate Rule 21 to guide this Court’s discretion to issue the writ under this Rule to review her guilty plea.

Because “no procedural mechanism exists under that Rule to issue the discretionary writ of certiorari to review the trial court’s judgment … under N.C. Gen. Stat. § 15A-1444(e),” the Court of Appeals held that writ review could only issue if the Court exercised its discretion to invoke “Rule 2 to suspend the Rules”—which the Court declined to do.

Now that Judge Geer is no longer on the Court, it will be interesting to see if any other Court of Appeals judges adopt a more expansive view of Rule 21.   Petition for en banc review anyone?

Happy Holidays!

–Beth Scherer

 

The Supreme Court of North Carolina just adopted new Appellate Rule 31.1  entitled “Motions for En Banc Consideration by the Court of Appeals.”

While I am still digesting this rule, I noticed that Rule 31.1(d) states that the denial of a motion for rehearing en banc “will trigger the time for taking an appeal of right to the Supreme Court” or “filing a petition for discretionary review.” However, Rule 31.1(e) indicates that the mandate under Appellate Rule 32 is not automatically stayed by the filing of the motion for en banc consideration.  Instead, a party may apply for a stay under Rule 8.  Appellate Rules 14 and 15, which govern the time for appealing or filing a petition for discretionary review to the Supreme Court, both state that these appellate filings are due 15 days after the issuance of the mandate. If the mandate is not automatically stayed, how are these timelines calculated?

A few other highlights:

  • There are two criteria for en banc consideration: 1) review is “necessary to secure or maintain uniformity of the court’s decision” and 2) “the case involves a question of exceptional importance”
  • Motions for initial en banc consideration may be made before the case is heard by the panel, but the motion will not stay the time for briefing
  • Motions for rehearing en banc after the issuance of a panel opinion are due 15 days after the panel opinion is filed.  Note this is different than a petition for rehearing, which is due 15 days after the mandate issues (35 days after issuance of opinion).
  • New en banc briefs are not allowed as of right, but may be requested by the court. Rule 31.1 also does not contemplate the filing of amicus briefs. While amicus briefs are not specifically prohibited, the new rule states that “the case will be reconsidered solely upon the record on appeal, the motion for en banc rehearing, and any responses thereto, new briefs of the parties if requested by the court, and oral argument if the court decides to hear oral argument.”
  • “Entry of the en banc opinion vacates the original panel opinion.”  Presumably the filing of any new en banc opinion will trigger the mandate to issue 20 days later, thus restarting the familiar timelines for seeking review by the Supreme Court under Appellate Rules 14 and 15.  However, if the en banc decision replaces the panel decision, how does that interact with newly amended § 7A-30(2) which states that there is an appeal of right when there is “a dissent when the Court of Appeals is sitting in a panel of three judges” but that this appeal of right “is not effective” until the Court of Appeals sitting en banc has rendered a decision in the case?
  • If both a Rule 31.1 en banc consideration motion and a Rule 31 petition for rehearing are filed, the Court will rule on the motion for rehearing en banc first.
  • Unlike Rule 31, Rule 31.1 contains no prohibition on motions for rehearing en banc in criminal cases.
  • No prohibition or disfavor for en banc review of interlocutory opinions.
  • No specific provision allowing Court of Appeals to hear case en banc on its own motion

-Beth Scherer

A couple of years ago, the North Carolina Supreme Court found itself with a heftier docket, thanks to new laws like the Business Court Modernization Act that sent certain appeals directly to the Supreme Court.

If a bill introduced today in the General Assembly becomes law, the Court of Appeals will now have its own surprising increase in work.  Among many other things, Senate Bill 4 would:

  • Create en banc jurisdiction in the Court of Appeals, wherein a majority of the court’s fifteen judges could vote to hear a case as a full court;
  • Eliminate the direct appeal to the Supreme Court from orders finding an act of the General Assembly facially unconstitutional, returning jurisdiction over such appeals to the Court of Appeals; and
  • Make appellate judge and justice elections partisan again.

Our Court of Appeals judges have quite heavy workloads already.  This bill would impose a substantial burden on those fifteen judges, their law clerks, and the clerk of court and his staff.  Consider that nearly 600 petitions for discretionary review are filed every year in the Supreme Court.  Those petitions are granted at a rate of less than 10%, but they are filed anyway.  Thus, I think it is not unlikely that many would-be Supreme Court petitioners would, if this bill becomes law, first avail themselves of the new Court of Appeals en banc pathway, adding another step in the already arduous appellate journey.

It is also notable that the bill contains no procedures for how en banc hearings or rehearings would be sought.  If the bill passes, it becomes effective immediately.  The Supreme Court may be required to swiftly prepare appellate rules governing the new pathway.

Finally, it is worth considering the interplay between the en banc legislation and this, from Article IV of the North Carolina Constitution:

Sec. 7. Court of Appeals.

The structure, organization, and composition of the Court of Appeals shall be determined by the General Assembly. The Court shall have not less than five members, and may be authorized to sit in divisions, or other than en banc. Sessions of the Court shall be held at such times and places as the General Assembly may prescribe.

For Professor Orth’s take on the meaning of “other than en banc,” see here.

We will keep you posted as this bill progresses.

–Mat Leerberg

 

On Tuesday, the Fourth Circuit issued an important opinion in United States v. Canada, No. 22-4519, holding that 18 U.S.C. § 922(g)(1) (the “felon in possession” statute) is facially constitutional even after Bruen—the Supreme Court’s current framework for testing criminal statutes for compliance with the Second Amendment.

First, background. Since 2022, Bruen has required courts to analyze such statutes using a two-step inquiry. Under the first part of that inquiry, the court determines whether the Second Amendment’s plain text covers the conduct. If the answer is yes, then the burden shifts to the government to show that the statute falls within the country’s historical tradition of firearm regulation. We have seen this applied across the country to criminal laws related to firearm possession—including recently here in North Carolina with the Radomski case.

Let’s start where the opinion does, explaining what it does not cover. This is not an as-applied challenge. (Check out Range v. Att’y Gen. United States of Am., 69 F.4th 96 (3d Cir. 2023) (en banc) for an as-applied challenge that was upheld by the Third Circuit). For that reason, the Fourth declines to wade into the full Bruen analysis.

Instead, the Court reminds us that no federal court has found 922(g)(1) to be facially unconstitutional—and the Fourth Circuit will not be the first. The statute is facially constitutional because it has a “‘plainly legitimate sweep’ and may be constitutionally applied in at least some ‘set of circumstances.’” So, for now, the government may continue to forbid people convicted of a felony from possessing firearms without running afoul of the Second Amendment.

922(g)(1) is not facially unconstitutional, but questions remain.  What is the definition of “people” under the Second Amendment, and where do convicted felons fit into this? What is the historical and traditional practice in our country of disarming dangerous people? What do we make of Supreme Court references in Heller and Bruen to “law-abiding citizens” and “longstanding prohibitions on the possession of firearms by felons”? Finally, does Bruen permit courts to revisit prior post-Heller decisions upholding the constitutionality of 922(g)(1)? The Fourth Circuit leaves those questions for another day.

Next, a South Carolina “criminal domestic violence” conviction is not a violent felony under the Armed Career Criminal Act, the Court held. That is because South Carolina “criminal domestic violence” can be committed with a mens rea of mere recklessness.  Under Borden v. United States, 593 U.S. 420 (2021), such a crime no longer qualifies as a “violent felony” under ACCA.

While the holdings here are simple, how the Court got here is not and highlights an interesting procedural mechanism available to the Fourth Circuit in many states but not here in North Carolina. As the opinion notes, the criminal intent necessary under state law to be found guilty of a particular state crime is determined by the supreme court of the state involved. If there is not a case directly on point, how does the Fourth Circuit get an answer? Well, in South Carolina they can certify a question to the Supreme Court of South Carolina. Look at the case that the Court references here, United States v. Clemons, No. 2022-001378, 2024 WL 1900632, at *4 (S.C. May 1, 2024), to see how the Supreme Court of South Carolina responded to the Fourth Circuit’s certified questions about mens rea in certain state convictions.

Interesting practice point. North Carolina is the only state in the country that does not allow a federal circuit court to certify questions to the state courts.  See Town of Nags Head v. Toloczko, 728 F.3d 391, 393 (4th Cir. 2013). Virginia does. See Rule 5:40, Va. R. Sup. Ct. Maryland does. See Md. Code Ann., Cts. & Jud. Proc. § 12-603. West Virginia does, too. See W. Va. Code §§ 51-1A-1 to 51-1A-13.  Longtime NC appellate practitioners may recall stalled efforts to amend our constitution to fix that omission a few years back.

-Morgan Reece

As some of our readers may know, I write a monthly column for North Carolina Lawyers Weekly. The topics are what I’d call appellate-adjacent. But this month’s column is right in the wheelhouse of this blog’s readership.

I was privileged to have Justice Dietz sit down with me for a long interview. You can check out the full interview on LinkedIn, where you’re free to leave a comment. You can also check out the print version here.

But there were lots of other interesting tidbits that didn’t make the print version but are likely of interest to the appellate bar.

The following is a grab bag of other snippets from my interview, in no particular order. But I think you’ll find it to be catnip for appellate nerds.

  • Working from home. Dietz has been a big fan of working from home, even before the pandemic. When he wants to focus on opinion drafting, he often works from home to avoid interruptions. Dietz lives just a few blocks away from the courthouse, so he can walk over for meetings even on days he plans on working from home.
  • En banc. Justice Dietz is among those who wish the Court of Appeals would sit en banc to clean up conflicting strands of its case law.
  • Strategies for petitions for discretionary review. Besides pointing to conflicts within the COA, “one of the surest ways to get a PDR allowed is to point out that something the court of appeals did is in conflict with a case from the Supreme Court.”
  • Handling petitions. Dietz wants a full revamp of how petitions are handled at the Supreme Court. He wants to follow the practice of the U.S. Supreme Court, where the petition is scheduled to be decided at an upcoming conference as soon as the response is filed. Right now, there’s a big disparity in how petitions get ruled on because each petition gets assigned to one chamber that’s working on it, and then sharing it with everyone else whenever it’s deemed ready. But there’s no timetable for the assigned justice to finish the memo. I can vouch for that: I’m in a case with a pending petition that’s about to have its second birthday. There’s no good reason for that. At a minimum, Dietz would like a way to communicate the status of the petition to litigants, so they don’t wonder whether the petition has fallen into a black hole.
  • Amici. Dietz considers amici to be “most important at the discretionary review stage.” That’s because the Court wants to know how important the decision is to people besides the litigants. One of Dietz’s priorities is trying to amend the appellate rules so that there’s a procedure for filing amicus briefs at that stage. Experienced practitioners know that such briefs are usually allowed, but the rule itself doesn’t contemplate filing amicus briefs at this stage.
  • Campaigning. Dietz also shared his thoughts on the lack of big-firm attorneys as appellate judges. In his words, running a campaign is “brutal.” Many of the most qualified appellate lawyers aren’t willing to put themselves through that.
  • State constitutional law. Dietz recently published a law review article on state constitutional law. He’s a fan of the work of Judge Jeff Sutton, a judge on the Sixth Circuit. Dietz believes that, for constitutional provisions unique to our state constitution, our state should have its own unique standards, not tiers of scrutiny from federal case law, which have their own, different historical context. Dietz wants litigants to help the Court in crafting rules that will sure that the spirit of what the people wanted lives on in the state constitution’s protections. If necessary, litigants should even look at how other states, with similar provisions, have put them to work. He thinks it’s fine for litigants to propose their own standards, even novel ones, so long as they explain how the test works and how it puts the constitutional principles its practice.

If you’ve regularly read my blog posts here over the past few years (in other words, if you are my mom), you will know that I find Fourth Circuit published denials of petitions for rehearing to be of particular interest.  Well, another one came out today.  Published Denial here.

This particular denial of rehearing en banc produced three written opinions.  After a 9-5 split of the judges against rehearing en banc, and a 2-1 split against panel rehearing, Judge Niemeyer wrote an opinion supporting the denial of rehearing en banc. Judge Motz wrote an opinion dissenting from the denial of rehearing en banc and voting to grant rehearing en banc, and was joined by Judges King, Wynn, and Thacker. Judge Wynn then also wrote an opinion voting to grant rehearing en banc, joined by Judges Motz, King, and Thacker joined.  Curiously, although Chief Judge Gregory was part of the group that voted in favor of rehearing, he joined neither Judge Motz’s nor Judge Wynn’s opinions advocating for that particular result.

According to Judge Niemeyer, “[a]t the root of this case lies the question of whether the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), overruled its earlier decision in Stinson v. United States, 508 U.S. 36 (1993), for determining the enforceability of and weight to be given the official commentary of the Sentencing Guidelines.”   In deciding the rehearing request, the Fourth Circuit judges grappled with questions of if and when the Fourth Circuit may conclude that the Supreme Court has overruled an earlier decision, especially when the nation’s highest court has not expressly said that it has done as much.  This question, in turn, raised the question of whether two opinions of Fourth Circuit panels on this substantive issue (including the opinion on which rehearing was being sought) are in irreconcilable conflict.

It’s an interesting read.  And, as is often the case when a petition for rehearing spawns a published denial, there is of course the chance that we may now see this case make its way to Washington, DC.  Stay tuned.

–Patrick Kane

On Wednesday, October 13th, the Supreme Court of North Carolina issued new amendments to the North Carolina Rules of Appellate Procedure.  The key changes, which apply to notices of appeal filed on or after 1 January 2022, are summarized below:

  • Electronic Appellate E-Filing Mandatory for Counsel in All Appeals
    • Mandatory e-filing. Remember approximately 18 months ago when paper-filing of the printed record was mandatory in the Court of Appeals–and then the pandemic shook up the prohibition on e-filing? The great e-filing experiment appears to have been a success.  In the new year, electronic filing in the appellate courts will be mandatory for counsel and encouraged for pro se litigants in all appeals. N.C. R. App. P. 26(a).  This requirement includes all components of the record on appeal.  Note that the new rule contains an exception for technical failures, as well as exceptions for oversized and non-documentary exhibits for which e-filing is often impossible.
    • Filing defined. The amendments clarify that items are considered “filed” when received by the electronic filing website.  This clarification makes sense. During the early days of the pandemic, it could take days before the clerk’s offices sent their emails accepting or approving electronically filed materials. The new rule expressly ties filing to when the materials are successfully received on the website.
  • Original Versus Copies of Exhibits and Other Rule 9(d) Items
    • History. I still fondly recall John Connell’s stories about dog food and other weird exhibits sitting in the Court of Appeals’ basement.  And rumor has it that Dan Horne’s office contained a collection of assault weapons that was very effective at discouraging questions after 4:30 p.m.  So why have the appellate courts become a repository for food, guns, and illegal drugs?   For one, practitioners often fear that not submitting everything to the appellate courts could lead to a malpractice claim.  Numerous appellate opinions have rejected insufficiency of the evidence arguments based on counsel’s failure to include all exhibits in the appellate record.  Second, the appellate clerks sometimes find it difficult to discern which exhibits are originals as opposed to copies—erring on the side of caution by keeping many exhibits indefinitely. In short, the proliferation of papers and wacky items has become an administrative (and financial storage) nightmare for the appellate courts.
    • Completely rewritten Rule 9(d) provision. Rewritten Appellate Rule 9(d)(2) has several features that should significantly curtail the above problems.
      • Copies preferred. Parties are encouraged to file copies of exhibits and other items, rather than originals.  N.C. R. App. P. 9(d).  Indeed, the imposition of mandatory e-filing should eliminate most of the original items concerns because the electronically-filed items are not originals anyway.
      • Original items described and incorporated by reference. For original materials that cannot be readily copied, parties should include a brief description of the item in the printed record.  N.C. R. App. P. 9(a)(1)(p), 9(a)(2)(m), 9(a)(3)(o).  This type of record-based description permits original items to be incorporated into the record on appeal by reference—i.e., without the item having to be physically delivered to the appellate courts.  See N.C. R. App. P. 9(d)(2) (“Original exhibits and other original items that have been settled as part of the record on appeal may be relied on by the parties in their briefs and arguments . . . .”).
      • Originals delivered only with permission. But what if a party believes that it is critical for the appellate judges to physically see, touch, or smell that 15-lb bag of Alpo that smells like fine, French perfume? Original exhibits can still be delivered to the appellate court—but only with the appellate court’s permission. N.C. R. App. P. 9(d)(2).  A motion under this new rule must explain the original exhibit’s relevance—and then wait for the appellate court to decide if it really, really needs to see the original.  N.C. R. App. P. 9(d)(2)(a).  If the motion is allowed, the custodian of the original exhibit must promptly deliver the exhibit to the appellate clerk “in a manner that ensures its security and availability for use in further trial proceedings.” N.C. R. App. P. 9(d)(2)(a).
      • Originals delivered upon request. What if the appellate court decides that it needs an original exhibit to decide the case, but no motion was filed or the motion was originally denied? The appellate court can require that the original be delivered to the court at any time. N.C. R. App. P. 9(d)(2)(a).
      • Originals returned or destroyed. When an appeal ends, the appellate clerk will ask the prior custodian to retrieve the original exhibit.  N.C. R. App. P. 9(d)(2)(b).   If the custodian ignores the notice, the appellate clerk may dispose of it.
        • Note: Various statutes require that criminal exhibits be preserved for post-conviction purposes. I suspect the appellate clerks will not be eager to trash these materials—even if a trial court clerk disregards a pick-up notice. . . . But we shall see.
      • Required notice on Rule 9(d) copies. All Rule 9(d)(1) “copies” must include this notice at the top of the first page (or when a non-standard exhibit, plainly marked somewhere on the copy): “Rule 9(d) Copies of Exhibits and Other Items.”  Given that e-filing is now mandatory, I think this rule’s purpose is to address when copies of e-filed documents are printed by someone within the court or when a party submits a copy of an oversized exhibit (for example, an oversized plat).  The mandatory notice will help the appellate clerks ascertain whether Rule 9(d) materials can be thrown away because either (1) the material is already stored within the electronic filing system, or because (2) the oversized exhibit is only a copy.
    • Expanded Definition of Rule 9(d) Documentary “Exhibits”
      • History. Sometimes an appellate provision morphs into a practice that goes beyond what a rule’s text originally contemplated. The modern incarnation of Rule 9(d) Documentary Exhibits is one such practice. When adopted back in 1975, Appellate Rule 9(d) addressed how trial exhibits were submitted outside of the printed record on appeal.  Over time, however, so-called “Rule 9(d) Documentary Exhibits” became a repository for trial tribunal items that did not logically fit or need to be included in the printed record, but which were too important to leave out of the appellate record altogether.  For example, appellate counsel might be concerned that the opposing party will take the position that an issue was not properly preserved, or, a party might seek to avoid a key concession made in a trial court brief. Including the relevant items in a Rule 9(d) Documentary Exhibit labeled “Trial Court Memoranda and Briefs” is one way to include the materials in the appellate record without bloating the printed record.  Rule 9(d) Documentary Exhibits sometimes also provide a way of promoting a better-organized appellate record.  See generally Scherer & Leerberg, North Carolina Appellate Practice & Procedure § 7.04 [Determining in Which Components of the Record on Appeal Documents Should Be Submitted]; § 7.08 [Rule 9(d) Documentary Exhibits].  The problem with old Appellate Rule 9(d)’s text is that it spoke in terms only of exhibits.  See N.C. R. App. P. 9(d) (2020).
      • Expansion of permissible Appellate Rule 9(d) materials. Rewritten Appellate Rule 9(d) incorporates the modern practices by providing that all “[e]xhibits and other items that have been filed, served, submitted for consideration, admitted, or made the subject of an offer of proof may be included in the record on appeal under [Rule 9(d)] if a party believes that they are necessary to understand an issue on appeal.”   Such items may be grouped together and presented to the appellate court in one or more separate Rule 9(d) volumes—or they may be included in the printed record.  N.C. R. App. P. 9(d)(1).
      • Statement of Rule 9(d). By custom, a “Statement of Rule 9(d)” has long been included in printed records when materials are submitted under Rule 9(d). See Scherer & Leerberg § 7.07[2][q] [Statements Describing Supplements to and Additional Components to Printed Record].  This statement is now required whenever copies of Rule 9(d) items are filed with the printed record.   N.C. R. App. P. 9(a)(1)(o), 9(a)(2)(l), 9(a)(3)(n).
    • Printed Record versus Record on Appeal
      • The meaning of the phrase “record on appeal” has undergone a gradual, but substantial, metamorphosis over the past 45 years–both within the case law and within the text of the appellate rules.  In the old rules, the phrase “record on appeal” sometimes referred to the golden-rod yellow “print record” reproduced by the clerk’s office in every appeal.  But at other times, the phrase “record on appeal” was used to refer more broadly to the entire appellate record.  Needless to say, figuring out which “record on appeal” the appellate rules were referencing could be difficult.
      • “Record on Appeal” defined. The amended rules clear up confusion by defining “record on appeal” broadly to include the “printed record, transcripts, exhibits and other items included in the record on appeal pursuant to Rule 9(d), any supplement prepared pursuant to Rule 11(c) or Rule 18(d)(3), and any additional materials filed pursuant to this Rule 9.”  N.C. R. App. P. 9(a).
      • Precise use of “printed record” and “record on appeal” terms. The amendments meticulously sort through every “record” reference to specify when a rule applies to the “printed record,” and when it applies to the broader “record on appeal.” For example, practitioners have long assumed that the provisions of Appellate Rule 9(b) (which address issues like unnecessary materials and file-stamps) only apply to the printed record.  After all, Appellate Rule 11(c) allows any item that was “filed, served, submitted for consideration, admitted, or made the subject of an offer of proof” to be included within the “record on appeal”—irrespective of its relevance.  The amendments confirm this understanding.
    • Time for Filing the Record on Appeal
      • Pre-2022 practices. Under the old rules, an appellant had 15 days to file the “record on appeal” once it was settled.  N.C. R. App. P. 12(a) (2020).  But as noted previously here, the appellate clerks instructed counsel to file the printed record first, and then wait until an appellate docketing number was assigned to file the remainder of the “record on appeal.” See N.C. R. App. P. 12(a) (2020).  Otherwise, the record on appeal components could be filed under different appeal numbers and have to be sorted out by the clerk’s office staff.
      • Practices beginning in 2022. The new rules expressly require the appellant to file “the printed record, transcripts, copies of exhibits and other items included in the record on appeal pursuant to Rule 9(d), and any supplement prepared pursuant to Rule 11(c) or Rule 18(d)(3)” all within 15 days of the record being settled.  Effectively, the 15-day filing requirement covers every component of the “record on appeal” other than original items.  See N.C. R. App. P. 12(a).  Copies of oversized and tangible items need to be filed by the 15-day deadline, but they are deemed filed when placed in the mail or hand-delivered to the appellate clerk.  See N.C. R. App. P. 26(a).
      • Website updates coming—but don’t jump the gun. The Supreme Court’s technology department is working on a website update that will permit all record components to be filed at the same time (i.e., without waiting for an appellate docketing number).  The new feature should be functioning when the amendments go into effect in 2022—but that new functionality is not ready just yet!  Until either 2022 arrives or the appellate clerks give the bar the green-light to file everything at the same time, counsel should continue to (1) file the printed record, and (2) then file the remaining record components once a docket number is assigned to the appeal. In other words, don’t jump the gun on this new record filing procedure—the rumor is that Gene Soar has inherited Dan’s assault-weapon collection.
    • Prior Notice and Consultation Before Filing “Motions”
      • Mandatory Notification and Reporting. The amendments have added a “notification and consent” requirement for all motions except for appeals involving pro se litigants. The new provision states that all appellate motions should (1) report “counsel’s good-faith effort to inform counsel for all other parties of the intended filing of the motion,” (2) indicate “whether the other parties consent to the relief being sought,” and (3) indicate “whether any other party intends to file a response.”  N.C. R. App. P. 37(c).
      • I hear you. Virtually all the texts and emails I have received about the amendments in the past 24 hours have involved the scope of this new provision.  Rather than respond to everyone individually, below is my best guess as of today as to the provision’s likely scope.
      • Inapplicable to Trial Tribunal Motions. This new notification requirement likely does not apply to appellate-related motions filed in the trial tribunal—i.e., first motions to extend transcript and proposed record deadlines.  My basis for thinking that?  The title of Appellate Rule 37 is “Motions in Appellate Courts.”
      • Motions for Which Ex Parte Relief Is Expressly Authorized Elsewhere. This new rule appears to apply to emergency motions for a temporary stay (i.e., those frequently filed with petitions for writ of supersedeas). The tension is that the Appellate Rules also authorize “ex parte” motions for a temporary stay “for good cause shown.”  See N.C. R. App. P. 23; Appendix D.   Similarly, although the new consultation provision would likely be most helpful when deciding extension of time motions, Appellate Rule 27(d) provides that “[m]otions for extension of time made in any court may be determined ex parte” when filed before the expiration of the time for which the extension is sought. Perhaps the consultation rule’s use of the words “should” and “good-faith” are designed to provide flexibility to not consult with opposing counsel “for good cause shown”–for example, during emergency situations or when prior consultation would permit an opposing party to prejudice the interests of the moving party? But I do not know.
      • Motions for Which Opposition Is Obvious. How many times have you seen opposing counsel consent to motions to dismiss an appeal, motions for sanctions, motions for rehearing en banc, motions for stay of execution, or motions for appropriate relief? While these motions are almost always opposed, the consultation requirement appears to apply.
      • Motions for Which Consent Is Routinely Given. On the other hand, consider the motions which counsel have historically had no opposition to:  motions to extend a transcriptionist’s deadline, motions to substitute counsel, motions for pro hac vice admission, or motions to file confidential materials under seal.  Whether this new consultation provision will encourage opposition to these routine motions remains to be seen.
    • WebEx Oral Arguments To Remain an Option Post-Pandemic The Appellate Rules now explicitly authorize deviations from traditional, in-person oral argument either on the court’s own motion or on the motion of any party.  N.C. R. App. P. 30(d).  (Note: the text of old Appellate Rule 30(d) authorizing the submission of a case to the appellate courts on written briefs by party agreement has been moved to new Appellate Rule 30(f)(3)).
    • Miscellaneous
      • Assorted references to filing “single copies” and “papers” have been deleted. In an e-filing world, those concepts no longer make sense.
      • The amendments clarify that Appellate Rule 26(g)(1)’s requirements for “letter size” filings and the use of particular fonts  apply only to documents “composed for the appeal” (i.e., appellate briefs and petitions, as opposed to trial tribunal materials in the record on appeal).
      • The amendments include several other clean-up (non-substantive) changes.
      • Updated Info (10/19/2021):  Appellate Rule 27(a) governs how weekends and holidays impact the calculation of deadlines under the appellate rules. The new rules now state that a legal holiday is “when the courthouse is closed for transactions.”  Because federal and state legal holiday are not always identical, the update clarifies that documents can still be due on a federal holiday if the state appellate courts remains open for regular business.  A similar phrase is found in Rule of Civil Procedure 6(a).

And there you have it—a summary of the key changes to the rules coming in 2022.  Have I missed any?  Any amendments that you love (or hate)?  Do you foresee any problems with the new rules.? Let me know in the comments below.

Finally, this week marks the tenth anniversary of this blog.  Thanks to all of our readers for the encouragement and tips you have provided over the years.  And thank you to the Fox appellate team members who have made this blog a success.

–Beth Scherer

 

The recent opinion of the North Carolina Court of Appeals in M.E. v. T.J., No. COA18-1045 has more twists than a Chubby Checker look-alike contest. The opinion is long and the facts and procedure are somewhat convoluted, but here’s a bare-bones synopsis.

Plaintiff and defendant, both women, were dating. When plaintiff decided to end the relationship, defendant allegedly became abusive. Plaintiff sought a Domestic Violence Protective Order (DVPO) and an ex parte temporary DVPO, both pursuant to Chapter 50B of the North Carolina General Statutes. For those who are dating but neither living together nor married, the protections of that statute are limited to couples “of the opposite sex.”

In contrast, Chapter 50C provides the protections of a no-contact order for “person[s] against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b).” N.C.G.S. § 50C-1(8). One significant difference between a Chapter 50B DVPO and a Chapter 50C no-contact order appears to be that Chapter 50B can be used ex parte to restrict access to firearms by the restrained party.

At a hearing on plaintiff’s motions for an ex parte Chapter 50B DVPO, the trial court denied the request on the grounds that plaintiff and defendant were not of opposite sexes, but allowed plaintiff’s motion for an ex parte 50C no-contact order.

Approximately one week later, the trial court conducted a hearing on plaintiff’s motions for a permanent Chapter 50B DVPO and a permanent Chapter 50C no-contact order. During the argument, plaintiff’s attorney stated that Chapter 50B was unconstitutional in light of the decision of the Supreme Court of the United States in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). The trial court declined to address the constitutionality of the statute based upon the bare oral assertions made by plaintiff’s counsel during the hearing. Instead, though obviously unhappy about the outcome, the trial court followed the existing statutory language and denied plaintiff’s Chapter 50B request. In its order, the trial court observed that the General Assembly had not amended the language of Chapter 50B in the aftermath of Obergefell. The trial court did, however, issue a permanent Chapter 50C no-contact order. Plaintiff filed notice of appeal to the North Carolina Court of Appeals.

The Court of Appeals allowed several entities to appear as amici on behalf of plaintiff, including the North Carolina Department of Justice. Noting that all these amici were on one side and that the defendant was not actively participating in the appeal, the Court of Appeals on its own motion entered an order appointing a pro bono court-assigned amicus curiae (“amicus”) “to defend the ruling of the trial court.” For clarity, this post refers to the North Carolina Pro Bono program appointee Lorin Lapidus of Nelson Mullins as “amicus,” who should not be confused with the other amici appearing in the case on plaintiff’s behalf.

While carrying out his duties, amicus uncovered quirks that called into question not only the trial court’s ability to address the constitutionality of Chapter 50B, but also its jurisdiction over the appeal.

As to the latter, amicus’s research revealed that plaintiff filed her initial motion for a Chapter 50B DVPO on 31 May 2018. Several hours later that same day, plaintiff filed an additional motion for a Chapter 50C no-contact order. These two motions were given different CVD numbers by the clerk of court. Eight minutes after filing her Chapter 50C request, plaintiff filed a notice of voluntary dismissal without prejudice of her Chapter 50B motion. Documents in the trial court record apparently showed that the clerk of court clocked in plaintiff’s dismissal of her Chapter 50B complaint.

However, it further appears that over the next few minutes, plaintiff’s voluntary dismissal form was marked through with a diagonal line, the word “amended” was added, and the following words were appended to the already-filed voluntary dismissal: “I strike through this voluntary dismissal. I do not want to dismiss this action.” Though the writer used first person and presumably is plaintiff, it does not appear that a signature or any of the other trappings of a newly filed complaint accompanied this altered document. The document was then refiled with the clerk of court under the same file number, and therefore bears two separate file stamps.

According to amicus, the trial court was never made aware that this dismissal form had been filed, “amended,” and refiled. Moreover, the dismissal form was not included in the record on appeal. While fulfilling its appointed duty to defend the trial court’s judgment, amicus spotted the omission and moved to file under seal a Rule 9(b)(5) supplement to the printed record on appeal that contained the document as an exhibit to the motion to seal. The motion was allowed by the Court of Appeals.

Amicus then filed a brief and a motion to dismiss with the Court of Appeals. The merits brief argued that the constitutional issues raised by plaintiff had not been adequately raised before the trial court and thus had not been preserved for appellate review. Amicus’s motion to dismiss argued that plaintiff’s voluntary dismissal of her motion for a Chapter 50B DVPO divested the trial court of subject matter jurisdiction of that issue, thus mooting the appeal.

In a 92-page opinion, the Court of Appeals reversed the trial court, holding that the “opposite sex” wording of Chapter 50B was unconstitutional. The Court of Appeals remanded the matter to the trial court for summary entry of a Chapter 50B order, and stated that “[t]he holdings in this opinion shall apply to all those similarly situated with Plaintiff who are seeking a DVPO pursuant to Chapter 50B.”

For appellate practice and procedure aficionados, the particularly intriguing portion of the opinion is the Court’s treatment of amicus’s arguments. This discussion begins on page 69 of the majority opinion. According to the majority, the order appointing amicus to “defend the ruling of the trial court” limited amicus “to provid[ing] this Court with an independent source of legal argument addressing the fundamental issues of public interest raised by Plaintiff’s appeal—whether the trial court’s refusal to grant Plaintiff a Chapter 50B DVPO constituted an as-applied violation of Plaintiff’s constitutional rights.” The majority noted that amici traditionally have a limited role in litigation, that amicus was not a party, and that the parties remain in control of their case. “This Court was not seeking new issues to decide; we were requesting well-briefed counterarguments to the issues already presented to us in Plaintiff’s appellate brief.”

The Court went on to note that the record was regular on its face and cited Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791 (1958) for the proposition that a “judgment regular upon the face of the record, though irregular in fact, requires evidence aliunde for impeachment. Such a judgment is voidable and not void, and may be opened or vacated after the end of the term only by due proceedings instituted by a proper person.” The Court of Appeals then dismissed amicus’s motion to dismiss and dismissed amicus’s motion to supplement the record.

Specifically, the Court of Appeals held that it did not have the “authority to consider any arguments made by the Amicus that are not responsive to Plaintiff’s appellate arguments and limited to the record as settled by the parties to Plaintiff’s action.” The Court sought to “provide clear guidance on the expectations, definitions, powers, and limitation of amicus curiae.” Slip op. at 80. In a nutshell, the Court of Appeals stated that an amicus was limited to addressing only the issues raised by the parties.

Judge Tyson filed a dissenting opinion, focusing on what he perceived to be questionable procedural aspects of the majority opinion, rather than the merits vel non of plaintiff’s constitutional arguments. Among other issues, the dissent argued that (1) the voluntary dismissal stripped the trial court of jurisdiction to enter the Chapter 50 DVPO, (2) plaintiff could have filed a motion pursuant to Rule of Civil Procedure 60(b) to revive the dismissed complaint but did not, (3) the issue of the constitutionality of Chapter 50B had not been properly preserved, and (4) if plaintiff had been seeking to challenge the constitutionality of the statute, then necessary parties (here, the Speaker of the N.C. House of Representatives and the President Pro Tempore of the N.C. Senate) had not been joined as required by Rule of Civil Procedure 19(d).

The dissent went on to address the omission of the notice of dismissal from the record on appeal by pointing out that Rule 3.3(d) of the Rules of Professional Conduct requires attorneys, who are officers of the court, to include unfavorable documents in the record on appeal as a professional responsibility. The dissent contended that Rule 3.3(d) similarly required amicus to bring the missing document to the attention of the Court of Appeals.

So where are we? At this point, no one is contesting the outcome, allowing court-ordered protection a party in a same-sex dating relationship, but the procedure followed by the Court of Appeals and the majority’s analysis raises questions. Did the dismissal form that was omitted from the filed record on appeal but later found by amicus strip the trial court of jurisdiction over the permanent 50B DVPO request, thus rendering the appeal moot and turning the Court of Appeals majority opinion into a 92 page advisory opinion?

North Carolina courts have stated from time immemorial:

  • that subject matter jurisdiction can be raised at any point, In re J.D.S., 170 N.C. App. 244, 248, 612 S.E.2d 350, 353, cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005) (“Subject matter jurisdiction may be raised at any time by the parties or by the Court ex mero motu.”),
  • that the parties cannot waive issues of subject matter jurisdiction, In re H.L.A.D., 184 N.C. App. 381, 385, 646 S.E.2d 425, 429, aff’d per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008), (“Subject matter jurisdiction cannot be conferred by consent or waiver.”),
  • and that an appellate court has an independent responsibility to confirm that it has jurisdiction, In the Matter of E.T.S., 175 N.C. App. 32, 35, 223 S.E.2d 300, 302 (2005)) (“This Court recognizes its duty to ensure subject matter jurisdiction exists prior to considering an appeal.”).

These earlier opinions do not sit comfortably with the majority’s statement that the Court did not have the “authority” to consider amicus’s arguments relating to subject matter jurisdiction. In addition, N.C.R. App. P. 9(b)(5)(b) authorizes an appellate court sua sponte to “order that additional portions of a trial court record” be sent up and included in a record on appeal. “[R]egardless of whether subject matter jurisdiction is raised by the parties, this Court may review the record to determine if subject matter jurisdiction exists.” In re N.R.M., 165 N.C. App. 294, 297, 598 S.E.2d 147, 149 (2004).

Another question is whether the limitations expounded by the majority are limited to amicus curiae appointed by the Court, or do they apply to all amici? Although the majority correctly points out that amicus is not a party, amicus was invited into the case by the Court. In some ways, that status as an “invitee” would seem to place amicus in a more privileged position than an amicus curiae participating in the case on its own motion, particularly when the amicus is being asked to support, not challenge, the lower court’s judgment. Yet the majority here limited the scope of amicus’s ability to carry out its mandate to defend the ruling of the trial court to addressing only the arguments raised by the appellant.

Here are a couple more twists. Under North Carolina law, the constitutionality of a statute cannot be raised on appeal without several preliminary steps. The majority found that Chapter 50B was unconstitutional “as applied to Plaintiff and those similarly situated.” Slip op. p 28. However, the Court previously held that “[i]n order for defendant to prevail in a motion to dismiss through an as-applied constitutional challenge…[the defendant] must present evidence which would allow the trial court to make findings of fact.”   State v. Buddington, 210 N.C. App. 252, 255, 707 S.E.2d 655, 657 (2011). See also N.C.G.S. § 1A-1, Rule 7(b)(1), (2019), requiring a written motion with a particularized statement of grounds for the motion. Here, as the trial court noted, the only evidence was a verbal statement by plaintiff’s trial counsel referring to Obergefell.

Along the same lines, was this really an “as applied” challenge when the majority held that its ruling applied to everyone similarly situated?

Moreover, as pointed out by the dissenting judge, in any civil action challenging the validity of a North Carolina statute, the Speaker of the House of Representatives and the President Pro Tempore of the Senate must be joined. N.C.G.S. § 1A-1, Rule 19(d). Although the N.C. Department of Justice participated as amicus on behalf of plaintiff at the Court of Appeals, no one from the State was part of the trial court proceedings. Rule 19(d) was adopted because history has shown that the interests of the executive branch do not always align with those of the legislative branch, so the Rule is not necessarily a formality.

What are the implications of the majority’s reliance on Shaver for the proposition that a judgment valid on its face but not in fact is voidable but not void? Does this statement apply to questions of subject matter jurisdiction raised on direct appeal? The Court of Appeals has held that a judgement entered by a court without subject matter jurisdiction is void ab initio, not merely voidable.   In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006). Is this an instance of a court (or Court) being right for the wrong reasons?

The twists continue when you think about options that are available or may be available to amicus. Should one in the position of amicus seek reconsideration by the Court of Appeals panel? Two members of the panel have now left the bench. It would be odd indeed if the motion were referred to the sole remaining judge, the dissenter, for decision. Would two other judges unrelated to the case be assigned to join the dissenter in ruling on such a motion? Would this be a good case for a motion for hearing en banc? While this case might present some fascinating issues for the entire Court to chew over, some suggested by In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 90 (1989), the Court of Appeals has not yet allowed any hearings en banc.

Or what about the Supreme Court? Absent further appeal pursued by defendant, amicus’s standing to appeal as a matter of right based on the dissent is open to question. Perhaps amicus could file a petition for writ of certiorari, calling upon the Supreme Court of North Carolina to exercise its supervisory authority over the lower courts. See In re Brownlee, 301 N.C. 532, 547-48, 272 S.E.2d 861, 870-71 (1981) (Though Wake County was not a party to the action and had no right to appeal the trial court’s orders, “this court will not hesitate to exercise its general supervisory authority when necessary to promote the expeditious administration of justice…[W]e elect to treat the papers which have been filed in this court [by Wake County] as a motion calling upon the court to exercise its supervisory powers to enable it to review the orders entered by [the trial court.]”) While Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984), reversed 313 N.C. 324, 327 S.E.2d 888 (1985) is not directly on point, it reminds us that the Supreme Court is willing to step in when it determines intervention is necessary.

There are numerous other twists in this case that I haven’t discussed. If you’ve read this far in this post, you are a genuine card-carrying appellate geek and probably have spotted many that I’ve omitted. Let us know your thoughts!

THIS JUST IN: It appears that defendant has formally engaged Mr. Lapidus to represent her in an appeal to the Supreme Court of North Carolina. I have left my earlier thoughts regarding various appellate-division alternatives in the above paragraphs intact in case similar issues arise again.

–Bob Edmunds and Beth Scherer

If you follow the Fourth Circuit, you know that there has been a noticeable increase in the number of en banc cases that the Court has taken, and in those cases there has been some sharp disagreement between the Judges.  See, for example, this prior blog post.  Or check out this post from our friends at the Maryland Appellate Blog.

Today the full Court denied a motion for emergency injunctive relief relating to the North Carolina State Board of Elections’s extension of its deadline for the receipt of absentee ballots for the current election.  Unlike some other recent en banc rulings, this denial had the support of most of the Judges (the Court voted 12-3 to deny the motion).  But consistent with other recent en banc rulings, the disagreement on the issue before the Court (and really, how the issue got before the en banc Court) prompted a number of written opinions.  Judge Wynn authored an opinion on the denial of the motion, Judge Motz wrote a concurrence, Judges Wilkinson and Agee wrote a dissent with which Judge Niemeyer joined, and Judge Niemeyer wrote his own dissenting opinion as well.

The start of Judge Niemeyer’s dissenting opinion highlights an underlying procedural issue on how this motion came to be decided by the full Court in the first place:

I am pleased to join the dissenting opinion written by the panel majority. This case was originally assigned to a panel, but the work of the panel was hastily preempted by an en banc vote requested by the panel’s dissenter after the panel majority had shared its views but before those views could be published.

As Judge Niemeyer goes on to explain, en banc review can be requested at any time by any member of a panel to which a case is assigned.  But he also states that doing so is not the usual custom and practice of the Court — and that as it was done here was “needlessly divisive.”  To understand the full story of what transpired, or at least as full of a story as can be gleaned from these published opinions, you should read them.  In the meanwhile, though, the question of whether there is “institutional disharmony” on the Court, as one judge last year suggested there was, seems to remain front and center.

–Patrick Kane

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.”), the transgender male Virginia high school student who sought to use the boy’s bathrooms at school.  Earlier today, that case again provided a published denial of rehearing en banc, this time with two markedly different concurrences–one from Judge Niemeyer and one from Judge Wynn.  Judge Niemeyer had dissented from the denial of rehearing in 2016, and urged for the case to be reviewed by the Supreme Court.  In his concurrence today, he again called for the panel’s decision (of which he was a part and from which he dissented) to be sent to the Justices.  He stated that “under every applicable criterion, this case merits an en banc rehearing,” but nevertheless declined to vote in favor of that rehearing on the grounds that he believed such an effort to be pointless, predicting that the Fourth Circuit’s past precedent in this specific case would only result in the en banc Court affirming the panel’s decision.   For his part, Judge Wynn (also a member of the panel and having joined in the majority decision and authored a concurring opinion of his own) concurred with the “wise decision” of Judge Niemeyer to deny rehearing,  albeit on a completely different basis.  In Judge Wynn’s view, the panel’s decision aligned with the other circuits that have addressed the issue, and moreover was supported by the Supreme Court’s opinion earlier this year in  Bostock v. Clayton County, 140 S. Ct. 1731 (2020).  Thus, en banc review was neither warranted nor necessary.

When Judge Niemeyer dissented in this matter in 2016 and called for the Supreme Court to take the case, the Court heeded his call and granted a writ of certiorari, but then vacated the panel opinion on procedural grounds.  Will the nation’s highest court once again agree with Judge Niemeyer that this case merits review?  Or will it agree with Judge Wynn that no sufficient grounds for certiorari are present?  While this almost certainly will not be the most high profile thing to happen with respect to the Supreme Court in the upcoming months, it will still be interesting to follow.

–Patrick Kane