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Does “Affirmed” Mean “Overturned?”: The Uncertain Binding Effect of 3-3 Split Opinions from the Supreme Court of North Carolina.

When less than a full complement of Supreme Court Justices considers a case being reviewed from the Court of Appeals, the result is sometimes an even split.  These days, the tie is usually announced in a per curiam opinion that includes such language as “Because the members of the Court are equally divided as to both issues, the holding of the Court of Appeals is left undisturbed and stands affirmed without precedential value.” See, e.g., Piro v. McKeever, 369 N.C. 291, 794 S.E.2d 501 (2016).  But what does “stands affirmed without precedential value” mean?  Without precedential value to whom?

The Supreme Court has not always used language similar to that quoted above when the Court is evenly split. For instance, in State v. Johnson, 286 N.C. 331, 210 S.E.2d 260 (1974), the Court noted that Justice Moore was not participating in the case, then stated:  “The remaining six justices being equally divided in opinion as to whether prejudicial error was committed in the trial below, the judgment of the Superior Court stands affirmed in accordance with the usual practice in such cases and decides this case without becoming a precedent.”

However, the Supreme Court in Johnson had allowed the appellants to bypass the Court of Appeals.  The remaining Supreme Court opinions that I could find which use language like that found in Johnson all preceded the creation of the Court of Appeals.  So when the Supreme Court was the only reviewing court, it seemed well-established that a 3-3 opinion meant that the lower court’s decision was binding on the parties to that case but not binding on the Supreme Court.  In addition, the trial court’s resolution of the issues did not bind other trial courts, so the same issues could easily come before the Supreme Court again on an unrelated appeal.

The advent of the Court of Appeals created an additional level of appellate review and with it, potential changes to the effect of a 3-3 Supreme Court decision. Before the Court of Appeals came along, a 3-3 split always meant that the decision of the trial court remained undisturbed.  Now, though, when the Supreme Court is reviewing an opinion of the Court of Appeals, a decision by an equally divided Court means that it is the decision of the Court of Appeals that is affirmed “without precedential value.”

But without precedential value to whom? Again, it seems plain that a 3-3 decision is not binding in the Supreme Court.  It also appears clear that the Court of Appeals opinion is the final word and binding for the parties in that particular case. See, e.g., Reese v. Barbee, 134 N.C. App. 728, 739, 518 S.E.2d 571, 573 (1999) (holding that the first Court of Appeals opinion establishes the law of the case).

But going beyond those immediately affected, what becomes of the issues raised in the Supreme Court via an appeal or petition that is affirmed without precedential value? Pursuant to In re Civil Penalty, a holding on an issue in a published opinion from the Court of Appeals is binding on other panels of that court “unless it has been overturned by a higher court.”  324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).  While the word “overturned” suggests that a 3-3 decision in which the Supreme Court explicitly affirms the Court of Appeals opinion would create precedent binding in the Court of Appeals, the immediately following phrase “without precedential value” suggests just the opposite.

So does the phrase “affirmed without precedential value” mean that the Court of Appeals decision is binding on future Court of Appeals opinions and on the trial courts but not on the Supreme Court? Or following a 3-3 decision, is the ruling of the Court of Appeals considered to be “overturned” for the purposes of determining whether it has precedential value in the Court of Appeals and the lower courts?  The language currently used by the Supreme Court in its 3-3 opinions, considered with its language in In re Civil Penalty, creates an ambiguity that neither court has addressed.

Until the language is definitively interpreted, perplexing scenarios are easy to imagine. Suppose, for instance, that a published Court of Appeals opinion contains a holding on a pertinent and timely issue.  Suppose next that the Supreme Court allows discretionary review, briefs are filed, the case is argued, and the Court issues a per curiam 3-3 opinion.  If the usual accompanying language means that the holding in the published Court of Appeals opinion now lacks precedential value in the Court of Appeals, the Supreme Court has effectively depublished that case, leaving the issues it addressed unresolved and, apparently, up for grabs if a subsequent panel comes to a different conclusion.  [Note: Although North Carolina has no formal procedure for depublishing cases, other states do. See, e.g., State v. Revelation Alo, 216 Mich. App. 669, 678, 550 N.W. 2d 568, 574 and fn. 3 (2003); People v. Dee, 222 Cal. App. 760, 763, 272 Cal. Rptr. 208, 209 (1990).]

On the other hand, if that usual wording is limited to mean only what it apparently meant in the past, i.e., that the issue is unresolved as far as the Supreme Court is concerned, is the Court of Appeals’ resolution binding on later cases in the Court of Appeals because the published Court of Appeals opinion was never “overturned”?  If so, the issue will not be raised again before the Supreme Court on a dissent because the Court of Appeals judges will be bound by the 3-3 decision of the Supreme Court.

Or consider the following scenario.  An unpublished opinion from the Court of Appeals contains a pertinent holding on an issue that was not addressed in any published opinion.  Later, a published Court of Appeals opinion reaches a contrary holding on that issue.  On review of that later  published opinion, the Supreme Court issues a per curiam 3-3 opinion with the standard “affirmed without precedential value” language.  Which opinion carries the day before the Court of Appeals when the issue arises for a third time?  The unpublished opinion that first addressed the issue?  The later published but apparently “depublished” opinion?  Neither?

The interpretation that a 3-3 split should not be binding on the Court of Appeals is supported by at least one policy argument.  Because a 3-3 split indicates that the issue is one on which reasonable minds can (and have) differed, it is important that the issue be resolved by the Supreme Court for the benefit of our state’s jurisprudence.  If the Court of Appeals decision was binding on future Court of Appeals panels, the best opportunity to get the issue back before the Supreme Court—a dissent—would be effectively foreclosed.  A binding 3-3 decision would also prevent future refinement, exploration, and scholarship on the issue in the Court of Appeals.

Professor John Orth, who knows a thing or two about North Carolina constitutional law, has recently written on this issue. “Without Precedential Value—When the Justices of the Supreme Court of North Carolina are Equally Divided,” 93 N.C. L. Rev 1719 (2015).  If this topic interests you, the article is well worth reading.

Until we are given more authoritative word from the courts, it may be that the new statute and rule permitting en banc review by the Court of Appeals will provide a useful way for that court to address these questions.

Bob Edmunds

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6 Responses to "Does “Affirmed” Mean “Overturned?”: The Uncertain Binding Effect of 3-3 Split Opinions from the Supreme Court of North Carolina."

  • Beth Scherer
    November 29, 2017 - 1:34 pm Reply

    Excellent post, Justice Edmunds. The different policy considerations make this an important issue. I am surprised it has not come up before.

    Here is another thought: What happens when the Supreme Court splits 3-3 on an issue never addressed by the majority opinion? Sounds far-fetched, but I have an example. About a year ago, I blogged on Rutherford, a case in which the Court of Appeals majority opinion did not address the issue that ultimately was presented to the Supreme Court based on a dissent. The Supreme Court split 3-3 on whether a Rule 59 motion can be properly used to toll the notice of appeal deadline for anything other than a judgment entered after trial. Stated another way, the Supreme Court essentially affirmed a majority opinion that was silent on the underlying issue “without precedential value.”

  • Robert Montgomery
    November 29, 2017 - 3:17 pm Reply

    If two justices recuse and therefore only five participate, it still takes four votes to reverse a Court of Appeals decision. Frady v. Groves Thread, 312 N.C. 316, 321 S.E.2d 835 (1984). In other words, a Court of Appeals decision is “left undisturbed but should not be considered as having precedential value” even if the vote of the Supreme Court is 3-2 to reverse. Id. at 317-18, 321 S.E.2d at 836.

    • Beth Scherer
      December 1, 2017 - 3:58 pm Reply

      Robert, Great catch on the use of different language and the fact that a 3-2 Supreme Court decision to reverse cannot overturn a Court of Appeals decision!

      A 3-2 “win” in the Supreme Court is actually a loss! Wow!

  • Daniel F. E. Smith
    November 29, 2017 - 3:28 pm Reply

    Beth– If I had to cite a Court of Appeals’ majority opinion in the situation you describe, I think it would be defensible to cite it as “Rutherford v. Smith, 123 N.C. App. 456, 789 S.E.2d 101 (2016), aff’d on other grounds without precedential value, 400 N.C. 567, 799 S.E.2d 359 (2017).” The parties could argue about whether the majority opinion (on other grounds) retained precedential value, but it’s hard to see how it was disturbed by the Supreme Court splitting 3-3 on an unrelated issue.

    Justice Edmunds–Fascinating article! I would also contend that a Court of Appeals’ opinion affirmed by 3-3 split should not bind future panels of the Court of Appeals because the “precedential value” of that opinion has been “overturned”, even if the decision as to the specific parties has been affirmed.

    Of course, when I quickly looked using a Lexis search, I found this case inconsistent with that contention– Meyer v. Walls, 347 N.C. 97 at 107 (1997), stating “To the extent that any cases are inconsistent with this holding, they are overruled.” and then specifically listing a COA opinion affirmed by a 3-3 split. So perhaps “overturning” precedential value requires something more than a 3-3 split.

    • Beth Scherer
      December 1, 2017 - 4:04 pm Reply

      Daniel, agree with you on the citation. What was so weird about Rutherford is that the issue addressed by the dissent was jurisdictional. Can the majority be truly silent on an issue of appellate jurisdiction? Or was the majority’s silence a statement that it had appellate jurisdiction because the notice of appeal was timely?

      Regardless, I agree that the better policy would likely be that a 3-3 split should not bind future panels. But the esteemed Professor Orth disagrees with us (and maybe Meyer) so who knows how this will ultimately come out.

  • Beth Scherer
    February 16, 2018 - 4:35 pm Reply

    In an opinion from today, the esteemed Judge Gale has found several Court of Appeals opinions that hold that a 3-3 affirmance by the Supreme Court means that the COA decision is no longer binding precedent, and therefore, represents an exception to In Re Civil Penalty.

    I am going to be lazy and quote his good work verbatim.

    56. Zloop, however, argues that the Court of Appeals’ holding in CommScope doctrine is binding and dispositive as to the application of the in pari delicto doctrine in this case. Zloop erroneously relies on In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act etc., 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), which held that “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” Id. A different rule governs Court of Appeals decisions affirmed by an evenly-divided Supreme Court. See, e.g., Hardin v. KCS Int’l, Inc., 199 N.C. App. 687, 694, 682 S.E.2d 726, 732 (2009) (holding that Currituck Assocs. Residential P’ship v. Hollowell, 166 N.C. App. 12, S.E.2d 256, aff’d per curiam by an equally divided court, 360 N.C. 160, 622 S.E.2d 493 (2005), was not controlling); Daniels v. Durham Cty. Hosp. Corp., 171 N.C. App. 535, 540–41, 615 S.E.2d 60, 64 (2005) (rejecting the decision in Campbell v. Pitt Cty. Mem’l Hosp., Inc., 84 N.C. App. 314, 352 S.E.2d 902 (1987), aff’d by an equally divided supreme court, 321 N.C. 260, 362 S.E.2d 273 (1987), because “the North Carolina Supreme Court was evenly divided and accordingly affirmed the Campbell opinion, but stripped it of precedential value”); Elliot v. N.C. Dep’t of Human Res., 115 N.C. App. 613, 620, 446 S.E.2d 809, 813 (1994) (noting that the court must “analyze this question without regard to this Court’s decision in Kempson [v. N.C. Dep’t of Human Res., 100 N.C. App. 482, 397 S.E.2d 314 (1990), aff’d by an equally divided Supreme Court, 328 N.C. 722, 403 S.E.2d 279 (1991)]” because Kempson stood without precedential value), aff’d per curiam, 341 N.C 191, 459 S.E.2d 273 (1995); Blitz v. Xpress Image, Inc., No. 05 CVS 679, 2006 NCBC LEXIS 12, at *26 n.12 (N.C. Super. Ct. Aug. 23, 2006) (“Because Pitts was affirmed by [an] equally divided Supreme Court, it stands without precedential value. After considering the analysis in Pitts, the Court declines to adopt its conclusion.”). Under this rule, the Court of Appeals’ CommScope holding regarding in pari delicto is not binding precedent.

    57. Although it is not binding, the Court has further considered whether the Court of Appeals’ CommScope holding regarding in pari delicto is persuasive authority. Cf. Lord v. Beerman, 191 N.C. App. 290, 296 n.3, 664 S.E.2d 331, 336 (2008) (holding that a case cited by a party, which had been affirmed by an evenly divided Supreme Court, “may be persuasive authority in this case”).

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