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What’s Behind the Sharp Rise in Dissents in the North Carolina Court of Appeals?

A dissenting opinion from the North Carolina Court of Appeals goes a long way. Unlike the procedures in many other jurisdictions, a single judge on our intermediate appellate court can create an automatic right to appellate review in our Supreme Court by penning a dissenting opinion.  In a system where requests for discretionary review from a unanimous Court of Appeals decision are granted less than 10% of the time, “getting a dissent” in the Court of Appeals can yield big spoils—a right to further appellate review, a new set of briefs, and guaranteed oral argument before the seven top jurists in our state.

Still, our Court of Appeals judges bear a heavy caseload, and the decision to dissent is a decision to add more work to their already busy schedules. In addition, because any final judgment is appealable as of right to the Court of Appeals, many of the appeals the Court of Appeals considers are not close calls.  Dissenting opinions are, therefore, rare.

Or, were rare.

In 2015, our Court of Appeals judges issued 19 dissents (18 in published decisions, and 1 in unpublished decisions) out of about 1,000 total written opinions—a dissent rate of about 1.9%.

So far in 2016, our Court of Appeals judges have issued 22 dissents (20 in published decisions, and 2 in unpublished decisions) out of about 385 written opinions—a dissent rate of about 5.7%.

Here is the breakdown by judge:

 

2015 Published Opinions   2016 to date Published Opinions
Bryant 3 Tyson 7
McGee 3 Dillon 5
Tyson 3 Hunter, Jr. 3
Geer 2 Elmore 2
Hunter, Jr. 2 Stroud 2
Dillon 2 Calabria 1
Inman 1 Total 20
Elmore 1    
McCullough 1
Total 18
2015 Unpublished Opinions 2016 to date Unpublished Opinions
Dillon 1 Hunter, Jr. 2
Total 1 Total 2
   

 

The data are quirky. For example, the opinions issued on April 5, 2016 included three dissents that arose from a single panel of judges who sat together on November 4, 2015.  However, it is not just one sitting or one group of judges that appears to have caused the uptick.

In any event, this year’s 22 dissenting opinions created 22 appeals as of right to our Supreme Court, which has itself been much busier of late.

We will keep an eye on the data to see whether this trend continues.

Finally, many thanks to appellate-court-watcher Kenzie Rakes for collecting these data and pointing out the deluge of dissents.

–Matt Leerberg

**Correction: the original post listed dissenting opinions from Judge Dietz in 2015 and Judge Zachary in 2016. In fact, both opinions were concurrences.  The table and figures have been revised accordingly.**

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5 Responses to "What’s Behind the Sharp Rise in Dissents in the North Carolina Court of Appeals?"

  • J.D.
    April 18, 2016 - 3:53 pm Reply

    Which unpublished cases included a dissent? I thought split decisions at the COA were automatically published…

    • Matt Leerberg
      April 18, 2016 - 3:59 pm Reply

      Not necessarily. See In Re: Lucks, Case No. 15-581, and Old Republic Nat’l Title Ins. Co. v. Hartford Fire Ins. Co., Case No. 15-444, both released April 5, 2016.

  • Jeff Kelly
    April 19, 2016 - 12:17 am Reply

    Very interesting information, Matt (and Kenzie).

    If you combine the data sets for both 2015 and 2016 dissents, the increase in dissents during 2016 appears to be the continuation of a trend that starts in June 2015. In fact, 17 of the 20 dissents from 2015 were issued on or after June 1, 2015. So, there was a significant concentration of dissents issued in the months leading up to, admittedly, a marked increase in dissents issued in 2016. It will be interesting to see whether this trend continues in the next set of opinions.

    • Matt Leerberg
      April 19, 2016 - 9:22 am Reply

      The 19 April 2016 batch of opinions adds two more dissents, both in published opinions, by Judges Tyson and Hunter. No dissents in the 49 (!) unpublished opinions released.

  • Mark Skinner
    July 27, 2016 - 7:32 pm Reply

    Our case, in re Skinner: we had a 2/3 reversal in an estate guardianship, filed 6/21/16. The COA held that over 20 errors of law and “bizarre” opinions by the clerk and affirmed by a last minute change of Superior Court Judge, One Appeals Court judge dissented. How can one judges opinion vary 180 degrees from the other two with so many egregious errors? If the Supreme court allows this case to be heard, me and my disabled wife are screwed. All we can do is pray the court refuses to hear it. We are being “out moneyed” by her siblings and they know it. Feel free to read the COA decision COA15-384

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