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

The 2018 judicial primaries–including those for open Court of Appeals and Supreme Court seats–have been eliminated.  With the senate and the house voting to override the Governor’s veto by substantial margins, Senate Bill 656, the “Electoral Freedom Act of 2017,” has become law.

The law (Session Law 2017-124) provides:

No 2018 Primary for Judicial Offices. – Notwithstanding G.S.

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The Governor has vetoed** a bill that would eliminate the 2018 judicial primaries–including those for open seats on the Supreme Court and Court of Appeals.  It is not clear if the bill has sufficient support to overcome the veto.

Senate bill 656, if it becomes law, would instead allow candidates to file their notices of candidacy between June 18 and June 29, 2018, and then be listed on the ballot in the general election.… Continue Reading

In this era rife with internecine conflict in state government, we shouldn’t forget a less publicized line in the sand.  Our state constitution grants plenary appellate authority to the Supreme Court of North Carolina, ascribing no role to the General Assembly to modify that jurisdiction.

The jurisdiction of the Supreme Court is set forth in Article IV, Section 12(1) of our state constitution:

(1)  Supreme Court. 

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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 partyline 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

UPDATE:  House Bill 239 was vetoed by the Governor on Friday.  Read the Governor’s statement here.  The override vote has been calendared in the house for Wednesday.

A bill to downsize the Court of Appeals—from 15 judges to 12—has been sent to the Governor.  The bill may have just enough partisan support to override a veto, although the override votes may be very close.… Continue Reading

Under current law, the Governor may appoint a replacement whenever a judicial or district attorney position becomes open, which occurs from time to time due to resignation, mandatory retirement, or otherwise.  The pool of persons from whom the Governor can choose is wide open.  An appointed replacement then holds the office until the next election (more or less).

House Bill 335, introduced Monday, would change that system. … 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 of the General Rules of Practice; and (2) how can the bill be characterized as a workload-shifting measure when the sum total of cases shifted to the Supreme Court would likely number in the single digits annually?… Continue Reading

A bill introduced today would shrink the number of Court of Appeals judges from 15 to 12.  If enacted, the bill would have the next three retirements or other vacancies simply go unfilled.

The Court of Appeals had 12 judges from 1977 through 2000, when the number was increased to 15.  Even with a full complement of 15 judges, the judges on the Court of Appeals are extremely busy. … Continue Reading

With the enactment of Senate Bill 4  last week, the Court of Appeals now has the statutory authority to hear and rehear cases en banc.  Right on schedule, the Court of Appeals released a batch of opinions this morning.  What will happen if a litigant wants to seek rehearing en banc from one of those decisions?

Currently, there are no procedures in place—none—governing the process of how a litigant might seek rehearing en banc, how the Court of Appeals might consider that motion or petition, or how those steps affect other appellate deadlines. … Continue Reading