It continues to amaze me how difficult it is for the public to access basic information about the upcoming elections for open seats on the Supreme Court of North Carolina and the Court of Appeals. While stories with political angles find their way into the press, the fundamentals—which seats are open, why those seats are open, who is running, why voters should care—get little coverage. … Continue Reading
On Friday, the Supreme Court displayed how busy it has been this summer by releasing 17 authored opinions. Justice Per Curiam (who is fond of affirming/reversing “for the reasons stated in the Court of Appeals” majority/dissent) was conspicuously absent. Justice Earls and Justice Newby vied for the title of “Most Prolific Dissenter.” And the Court released its first three opinions directly reviewing trial tribunal orders terminating parental rights—and for those wondering, all three opinions were decided by the Supreme Court by published opinion, but without oral argument.… Continue Reading
At first blush, it might not seem surprising that the Court of Appeals would dismiss an appeal if “[n]o issues have been argued or preserved for review.” But what is surprising is the fact that the Court reached that conclusion in a published opinion and, in doing so, made a significant change to the jurisprudence of cases arising under Rule 3.1… Continue Reading
Tuesday’s batch of opinions from the Court of Appeals included several helpful reminders. None of these is especially earth-shattering, but the opinions do answer some questions that may be forgotten during the rough-and-tumble process.
Do you have to file a responsive pleading after dismissal is reversed on appeal?
Yes, you do. But when you have to do so is an open question.… Continue Reading
Last Friday was a blockbuster appellate day for the Supreme Court of North Carolina. Not only did it effectively declare an appellate jurisdiction statute unconstitutional (see Matt’s blog post), but Justice Newby authored a concurring opinion inspired by “It’s a Wonderful Life.” (“Was Old Man Potter simply morally corrupt or was he also guilty of a crime?”).
For North Carolina’s appellate defenders, however, Friday was not a wonderful day.… Continue Reading
Last week, we wrote about a bill that was introduced in the legislature that would shrink the Court of Appeals to 12 judges while tweaking the jurisdiction of the Supreme Court to cover direct appeals from orders on class action certification and to provide another pathway for consideration of “Bypass PDRs.”
We had a hard time understanding two things about the bill: (1) why did the bill also give an appeal right to the Supreme Court from decisions regarding an attorney’s scheduling conflicts under Rule 3.1… Continue Reading
In its final set of opinions from 2016, the North Carolina Court of Appeals provided some helpful reminders for appellate practitioners.
1. Unless some other exception applies, you may appeal from an interlocutory order only if it affects a substantial right. In Pass v. Brown, the Court reminded us that an appellant must identify a substantial right affected by each issue, not by an immediate appeal as a whole.… Continue Reading
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.
According to the preliminary numbers, Judges Rich Dietz, Bob Hunter, and Valerie Zachary will keep their seats on the North Carolina Court of Appeals. The Supreme Court of North Carolina will welcome Mike Morgan as a new associate justice, and the Court of Appeals will now include Phil Berger and Hunter Murphy as judges.
Congratulations to all of the judges returning to or joining our State’s appellate courts. … Continue Reading
There are few concepts that are as important to our nation’s jurisprudence as that of jurisdiction. As stated by the Supreme Court of the United States, “Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them . . . .” Rhode Island v. Massachusetts, 37 U.S.… Continue Reading