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Breaking News: New En Banc Rule 31.1 Adopted By Supreme Court

The Supreme Court of North Carolina just adopted new Appellate Rule 31.1  entitled “Motions for En Banc Consideration by the Court of Appeals.”

While I am still digesting this rule, I noticed that Rule 31.1(d) states that the denial of a motion for rehearing en banc “will trigger the time for taking an appeal of right to the Supreme Court” or “filing a petition for discretionary review.” However, Rule 31.1(e) indicates that the mandate under Appellate Rule 32 is not automatically stayed by the filing of the motion for en banc consideration.  Instead, a party may apply for a stay under Rule 8.  Appellate Rules 14 and 15, which govern the time for appealing or filing a petition for discretionary review to the Supreme Court, both state that these appellate filings are due 15 days after the issuance of the mandate. If the mandate is not automatically stayed, how are these timelines calculated?

A few other highlights:

  • There are two criteria for en banc consideration: 1) review is “necessary to secure or maintain uniformity of the court’s decision” and 2) “the case involves a question of exceptional importance”
  • Motions for initial en banc consideration may be made before the case is heard by the panel, but the motion will not stay the time for briefing
  • Motions for rehearing en banc after the issuance of a panel opinion are due 15 days after the panel opinion is filed.  Note this is different than a petition for rehearing, which is due 15 days after the mandate issues (35 days after issuance of opinion).
  • New en banc briefs are not allowed as of right, but may be requested by the court. Rule 31.1 also does not contemplate the filing of amicus briefs. While amicus briefs are not specifically prohibited, the new rule states that “the case will be reconsidered solely upon the record on appeal, the motion for en banc rehearing, and any responses thereto, new briefs of the parties if requested by the court, and oral argument if the court decides to hear oral argument.”
  • “Entry of the en banc opinion vacates the original panel opinion.”  Presumably the filing of any new en banc opinion will trigger the mandate to issue 20 days later, thus restarting the familiar timelines for seeking review by the Supreme Court under Appellate Rules 14 and 15.  However, if the en banc decision replaces the panel decision, how does that interact with newly amended § 7A-30(2) which states that there is an appeal of right when there is “a dissent when the Court of Appeals is sitting in a panel of three judges” but that this appeal of right “is not effective” until the Court of Appeals sitting en banc has rendered a decision in the case?
  • If both a Rule 31.1 en banc consideration motion and a Rule 31 petition for rehearing are filed, the Court will rule on the motion for rehearing en banc first.
  • Unlike Rule 31, Rule 31.1 contains no prohibition on motions for rehearing en banc in criminal cases.
  • No prohibition or disfavor for en banc review of interlocutory opinions.
  • No specific provision allowing Court of Appeals to hear case en banc on its own motion

-Beth Scherer

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2 Responses to "Breaking News: New En Banc Rule 31.1 Adopted By Supreme Court"

  • Tara Muller
    December 28, 2016 - 6:43 am Reply

    This blog is always helpful to NC appellate attorneys, but with all the new changes last week, it has become absolutely invaluable. Thanks so much for your thoughtful analysis of all the practical applications of the new rules.

    • Beth Scherer
      December 28, 2016 - 8:54 am Reply

      Thanks Tara!

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