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Whole Woman’s Health v. Hellerstedt and the Difference Between Facial Orders and Facial Challenges

What does the U.S. Supreme Court ‘s decision today in Whole Woman’ s Health v. Hellerstedt have to do with constitutional challenges in North Carolina?  At the very least, it highlights a potential gap in the jurisdiction of our state Superior Courts over state constitutional challenges.

In 2014, North Carolina implemented a new system for handling facial challenges to acts of the General Assembly.  Most such (non-redistricting) civil facial challenges must now be transferred to a three-judge

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When A Case is Moot, Must the Court Remain Mute?

“It is axiomatic that if, during the course of litigation, an action becomes moot, it should usually be dismissed.” In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 (1978).

Key word in the above quote? “Usually.”

In an opinion issued by the Court of Appeals on Tuesday in Anderson v. North Carolina State Board of Elections, the Court addressed the issue of mootness and when it is

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Lunchtime CLE, July 7 in Cary, Will Feature Judges Diaz, Gale, and Ridgeway

In North Carolina, parties with business disputes may have the choice among as many as four “forums” in which to bring their case:  state superior court; superior court with a Rule 2.1 designated judge; business court; and federal court.

This initial decision can have important consequences for the life cycle and strategy of the case.  The differences in the ways those cases are appealed are particularly fascinating.  Superior Court cases

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What’s in a Name? Compliance with a Rule Perhaps.

This morning, my colleague Whit Pierce forwarded me a legal writing tip from Bryan A. Garner, a well known American lawyer and lexicographer who has authored a number of books on legal writing. Garner ‘s tip was that in writing a brief, you should avoid “depersonalization” of your opponent by referring to him/her/it/them with a legal label such as “plaintiff” or “appellant.” Garner gave a number of reasons for this advice, but one that he did not mention was the possibility that such depersonalization might run counter to a rule of court. For example, Rule 28(d) of the Federal Rules of Appellate Procedure specifically addresses “References to Parties” in briefs (and oral argument) and states:

In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.”
My instinct, likely learned at some point

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Not So Fast: Supreme Court of North Carolina Reinstates Board of Education Appeal

A few months ago, Carrie blogged about the dismissal of the State ‘s appeal by the Court of Appeals in North Carolina State Board of Education v. State of North Carolina & North Carolina Rules Review Commission.  A substantial development occurred in this case in the Supreme Court on Thursday.

As discussed previously, the General Assembly amended  section 7A-27 and other statutes to provide special trial and appeal pathways for facial constitutional challenges to a statute: 1) initial review by a three-judge panel, and 2) direct appeal to the Supreme Court if a law is declared facially invalid.  As applied challenges, however, continue to be appealed first to the North Carolina Court of Appeals.

In North Carolina State Board of Education, a single trial court judge found a statute unconstitutional (an indication that it was an as applied ruling).  After appealing the trial court order to the Court of Appeals, the State grew concerned that the opinion might be construed as finding the law facially unconstitutional (which, under a strict reading of amended 7A-27, would have required direct appeal to the Supreme Court).  The State moved to remand the order to the trial court for clarification on this issue.  However, the Court of Appeals summarily dismissed the appeal, holding that “it was without jurisdiction to hear the appeal.”

Last week, the Supreme Court said “not so fast,” granted certiorari to reinstate the State’ s appeal, and remanded the case to the Court of Appeals. The Supreme Court ‘s order expressly held that the trial court’ s order “did not hold that an act of the Generally Assembly was facially invalid” and remanded the “case to the Court of Appeals for consideration of defendants’ challenges to the validity of the trial court order on the merits.”

The order seems to confirm what the Supreme Court previously said in Town of Boone v. North Carolina, 777 S.E.2d 759 (N.C. 2015):
According to the plain text of the statute under which appeal has

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