After two years of uncertainty about the future of the Court of Appeals, there appears to have been a breakthrough.  Yesterday, a bill was introduced by Republicans in the North Carolina Senate that would preserve the size of the Court of Appeals at 15 members.  If the bill becomes law–and I expect it will–the drama surrounding the court shrinkage may end as abruptly as it began.… Continue Reading

It was just over one year ago that I wrote about the authority of one appellate panel to overrule another panel when the issue is one of jurisdiction. Last week, the Supreme Court of North Carolina issued an opinion in that case that helps to explain the jurisdiction of the appellate courts. The opinion may also offer a preview of the analysis we will see in the pending State v.Continue Reading

We have blogged several times on the fact that North Carolina is one of only two states that does not allow a federal court to certify questions to its state courts for guidance on issues of state law.  Recently, a Fourth Circuit concurrence by Judge Thacker contained another public plea for North Carolina to adopt a certification mechanism–quickly. In Stahle v.Continue Reading

Way back in January, a bill was introduced that would have “restore[d] partisan statewide judicial elections.”  That is, the bill would have required Court of Appeals and Supreme Court candidates to seek their party’s nomination through a primary election, then compete in a partisan general election.  The bill stalled in committee in April, where it languished all summer.

Last week, a “committee substitute” was proposed, leaving nonpartisan races intact but requiring Court of Appeals candidates to indicate their party affiliation when filing their notices of candidacy, which affiliation will then appear on the ballot.… Continue Reading

The “automatic stay” statute seems simple enough at first glance.  “When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.” … Continue Reading

Who has the right to control environmental commissions in North Carolina–the Governor, or the Legislature?

That is the central question in a lawsuit filed by current and former Governors McCrory, Hunt, and Martin against Senate President Pro Tem Phil Berger and House Speaker Tim Moore.  After a three-judge panel struck down the General Assembly’s process for appointing members to such commissioners (including one overseeing the coal-ash cleanup), Defendants appealed directly to the Supreme Court of North Carolina under the new “direct appeal” statute, which allows for such direct appeal from lower court rulings that hold an act of the General Assembly to be unconstitutional.… Continue Reading

Yes, we are still an appellate blog.  The Business Court, however, has been particularly active in the appellate sphere these past few months.  As reported in June, the General Assembly has been considering a bill to “modernize” the North Carolina Business Court.  On Saturday, a final bill was presented to the Governor, which he is expected to sign.

Senate Bill 853 would amend section 7A-27 to shift to the North Carolina Supreme Court venue over appeals of right from final judgments and most immediately appealable interlocutory orders of the Business Court. … Continue Reading

It was a pleasant surprise this morning to discover that the Maryland State Bar Association’s Maryland Appellate Blog was discussing a point of North Carolina appellate practice and procedure.

The impetus of the discussion was the United States Supreme Court’s recent decision in CTS Corp. v. Waldburger, where the Court was called on to decide whether the express preemption of state statutes of limitations set forth in the federal superfund environmental clean-up law known as CERCLA also applies to state statutes of repose. … Continue Reading

Mack Sperling reports this morning in his Business Litigation Report that the General Assembly is toying with “modernizing” the North Carolina Business Court.  Several significant changes are being proposed, but of particular interest to our readers is a proposal that could dramatically expand the docket of the Supreme Court.  If this portion of the bill is adopted, appeals from all final judgments issued by the Business Court in mandatory complex business cases would bypass the Court of Appeals and proceed directly to the North Carolina Supreme Court.Continue Reading