With little notice or fanfare, the latest North Carolina Senate budget bill stands poised to make a significant change in North Carolina appellate practice. Currently there are several routes to the Supreme Court of North Carolina, including direct appeal from the trial division in some relatively rare instances, appeal from the North Carolina Court of Appeals on the basis of a substantial constitutional question, petition for discretionary review (PDR) or other extraordinary writ, or on the basis of a dissent in the Court of Appeals. This last, an appeal of right on the basis of a dissent, may be on the way out.
Here’s a link: General Assembly Session of North Carolina, Session 2023, House Bill 259 (2023 Appropriations Act). It’s a doozy but the pertinent language is on page 289, where Section 16.21(d) strikes N.C. Gen. Stat. §7A-30(2). James Kilbourne has pointed out that the budget bill passed the North Carolina Senate on May 16 after a budget bill that did not contain this language had been passed by the North Carolina House. The House rejected the Senate bill, so a conference committee has been appointed. Stay tuned!
If this change is enacted, what will it mean? It depends on your point of view. From the perspective of the Court of Appeals, this is a major change. North Carolina is one of only a few states that allows an appeal of right to the state’s court of last resort based upon a dissent in an intermediate court. In other words, one judge on the Court of Appeals can compel the Supreme Court to take a case. That power will disappear.
From the perspective of the Supreme Court, this could be good news. Not all dissents are equal. While many appellate practitioners have grumbled about the number of per curiam opinions issued by the Supreme Court, many involved dissent-based appeals where all the Justices agreed that either the majority opinion or the dissent was unquestionably correct. Those instances—especially those where the Court of Appeals majority was summarily affirmed—frustrated both the attorneys who had rebriefed and argued the case on the basis of the dissent, and also the Justices, who had to spend time on the records and briefs in preparation for court.
If this measure passes, the issue raised in a dissent will most likely have to be presented in the form of a PDR, where the process of the Supreme Court’s initial consideration of the Petition can economically determine which issues should be heard. PDR practice will become increasingly important for the appellate bar. It might be worth your time to check out Troy Shelton’s discussion with Justice Dietz, where you can find some ruminations on this very issue.
From the practitioner’s perspective, this could be a mixed bag. Attorneys who regularly practice in the appellate division know that a dissent in their favor is not always entirely welcome. Explaining to a client that they’ve been given an opportunity to spend more money going to the Supreme Court on an issue that may be a long shot can be tricky. The prevailing attorney at the Court of Appeals usually groans upon seeing a dissent and realizing that the battle is probably going to have to be refought. On the other hand, many appellate practitioners relish the chance for an oral argument, which is the norm in the Supreme Court. That gateway to specialization will be less open if the Senate bill prevails.
So big changes may be in the offing. Keep your eye on this conference committee of the General Assembly.
Tip of the hat to Gregg Schwitzgebel for pointing out this change to me, and to Jamie Kilbourne for clarifying the procedural status of this proposal.