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When Can One Court of Appeals Panel Overrule Another?

The general rule is that a decision of one panel of the Court of Appeals is binding on future panels addressing the same issue. State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 133 (2004). This rule is especially true when the subsequent panel is considering the same issue in the course of the same case. Should there be a different rule when questions of subject matter jurisdiction are presented? After all, a court always has an independent duty to assure itself that it has subject matter jurisdiction over the matter at hand, even if the parties do not raise it as an issue.

Back in April, we noted the Supreme Court opinion of State v. Stubbs, which held that the Court of Appeals has jurisdiction over the State’s appeal from an order that grants a motion for appropriate relief. The opinion in Stubbs did not address another issue that had caused division in the Court of Appeals decision: the ability of one panel of the Court of Appeals to revisit a jurisdictional decision made by an earlier panel. (The Supreme Court merely decided that “both panels did have subject matter jurisdiction.”) The concurring and dissenting Court of Appeals judges in Stubbs contended that a panel is not bound by previous determinations of subject matter jurisdiction.

Today, the Court of Appeals addressed this issue again. In State v. Thomsen, the trial court entered a sua sponte order granting appropriate relief to the defendant. The State filed a petition for writ of certiorari, which one panel granted. In the defendant’s brief, he argued that the court lacked jurisdiction to hear the case (in spite of the earlier grant of certiorari). The majority concluded that “absent direction otherwise,” the panel was bound by the earlier grant of certiorari—even if it was a matter of jurisdiction.

Chief Judge McGee filed a dissenting opinion in which she contended that the State could not seek review of the trial court’s order. Her opinion stated that the concurring and dissenting judges in Stubbs formed a majority opinion on this issue, which was not overruled by the Supreme Court, and therefore the Court of Appeals “is not bound by the prior rulings of this Court when the issue is lack of subject matter jurisdiction.” According to Chief Judge McGee, “the prior panel lacked jurisdiction to enter that order [granting certiorari], and it is therefore a nullity, of no effect, and subject to collateral attack at any time.”

It will be interesting to see what happens if/when this case goes to the Supreme Court. In the meantime, practitioners should be prepared to address the matter of subject matter jurisdiction whenever it is raised, at any stage of the proceedings.

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2 Responses to "When Can One Court of Appeals Panel Overrule Another?"

  • Beth Scherer
    January 22, 2018 - 1:27 pm Reply

    As an update, the Supreme Court left the issue open in State v. Thomsen, 789 S.E.2d 639, 643 (N.C. 2016).

    “The parties have briefed a second issue—namely, whether the decision by the Court of Appeals petition panel to issue the writ constituted a ruling on jurisdiction that bound the subsequent opinion panel. Because we have addressed the underlying subject-matter jurisdiction question de novo, however, this additional issue is now moot.”

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