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Bill Would Give Court of Appeals En Banc Jurisdiction and Make Appellate Races Partisan Again; Eliminate Direct Appeal To Supreme Court From Orders Declaring Law Facially Invalid

A couple of years ago, the North Carolina Supreme Court found itself with a heftier docket, thanks to new laws like the Business Court Modernization Act that sent certain appeals directly to the Supreme Court.

If a bill introduced today in the General Assembly becomes law, the Court of Appeals will now have its own surprising increase in work.  Among many other things, Senate Bill 4 would:

  • Create en banc jurisdiction in the Court of Appeals, wherein a majority of the court’s fifteen judges could vote to hear a case as a full court;
  • Eliminate the direct appeal to the Supreme Court from orders finding an act of the General Assembly facially unconstitutional, returning jurisdiction over such appeals to the Court of Appeals; and
  • Make appellate judge and justice elections partisan again.

Our Court of Appeals judges have quite heavy workloads already.  This bill would impose a substantial burden on those fifteen judges, their law clerks, and the clerk of court and his staff.  Consider that nearly 600 petitions for discretionary review are filed every year in the Supreme Court.  Those petitions are granted at a rate of less than 10%, but they are filed anyway.  Thus, I think it is not unlikely that many would-be Supreme Court petitioners would, if this bill becomes law, first avail themselves of the new Court of Appeals en banc pathway, adding another step in the already arduous appellate journey.

It is also notable that the bill contains no procedures for how en banc hearings or rehearings would be sought.  If the bill passes, it becomes effective immediately.  The Supreme Court may be required to swiftly prepare appellate rules governing the new pathway.

Finally, it is worth considering the interplay between the en banc legislation and this, from Article IV of the North Carolina Constitution:

Sec. 7. Court of Appeals.

The structure, organization, and composition of the Court of Appeals shall be determined by the General Assembly. The Court shall have not less than five members, and may be authorized to sit in divisions, or other than en banc. Sessions of the Court shall be held at such times and places as the General Assembly may prescribe.

For Professor Orth’s take on the meaning of “other than en banc,” see here.

We will keep you posted as this bill progresses.

–Mat Leerberg


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4 Responses to "Bill Would Give Court of Appeals En Banc Jurisdiction and Make Appellate Races Partisan Again; Eliminate Direct Appeal To Supreme Court From Orders Declaring Law Facially Invalid"

  • Beth Scherer
    December 15, 2016 - 3:12 pm Reply

    Very interesting. Professor Orth’s explanation for why “other than en banc” is only a restatement of the provision allowing the Court to sit in panels, and NOT a prohibition on COA en banc proceedings makes sense.

  • J.D.
    December 15, 2016 - 3:51 pm Reply

    With apologies to Jaws, they’re gonna need a bigger courtroom…

  • Patrick Kane
    December 16, 2016 - 7:28 pm Reply

    The changes to the appeal as of right when there is a dissent creates an interesting scenario. It appears that right remains even after the Court of Appeals issues a decision after rehearing en banc. So by the plain language of the rule, if a three judge panel issued an opinion with a dissent, and the losing party seeks rehearing en banc and gets it, and the court sitting en banc reverses the three judge panel, then the party that won before the three judge panel but lost before the en banc court would have an appeal as of right because the original opinion had a dissent. If the intent of that change was to lessen the cases that get to the Supreme Court by encouraging cases with a dissent to be reheard en banc, it may have an unintended opposite effect–because after rehearing en banc of such a case, both parties/either party would have an appeal as of right regardless of the outcome.

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