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Dissent Into The Maelstrom

maelstrom

Something not seen in recent years emerged in a recent opinion from the Court of Appeals.  In State v. Thabet, COA17-1417 (unpublished) (September 18, 2018), the majority held that defendant’s roadside request for “a breathalyzer” was the equivalent of a request for a Portable Breath Test and that the trial court did not err in denying defendant’s motion to suppress evidence of his impaired driving.

Nothing remarkable here until we reach the dissent at the conclusion of the opinion. There we see a simple and unadorned declaration that “Judge MURPHY dissents.”

Do these three words trigger an appeal of right?  What issue or issues, if any, can defendant appeal to the Supreme Court of North Carolina?  Let’s begin our analysis with a trip down memory lane.

When the Court of Appeals was first created, the applicable jurisdictional statute stated that “Except as provided in G.S. 7A-28 [no provisions of which are applicable here], an appeal lies of right to the Supreme Court from any decision of the Court of Appeals rendered in a case . . . (2) In which there is a dissent when the Court of Appeals is sitting in a panel of three judges.”  N.C.G.S. 7A-30(2).  This portion of the statute remains in effect.

Up until 1983, there are cases in which the Supreme Court heard appeals of right when there was a dissent, even though there was no dissenting opinion. For instance, in Braswell v. Purser, 16 N.C. App. 14, 190 S.E.2d 857 (1972), the opinion crisply notes at the conclusion that “MALLARD, C.J. dissents.”  The Supreme Court affirmed, apparently addressing all the issues that the appellant brought forward as an appeal of right.  282 N.C. 388, 193 S.E.2d 90 (1972).   Similar treatment may be found in Brondum v. Cox, 30 N.C. App. 35, 226 S.E.2d 193 (1976), aff’d,292 N.C. 192, 232 S.E.2d 687 (1977), where then-judge Morris dissented without opinion and the Supreme Court reviewed the issues.

The courts followed this procedure because, until 1983, the rule governing the scope of appeals from the COA to the Supreme Court provided that “A party who was an appellant in the Court of Appeals and is either an appellant or an appellee in the Supreme Court, may present in his brief any question which he properly presented for review to the Court of Appeals, and is not limited to those actually determined by the Court of Appeals nor to those questions upon whose existence the appeal of right or the discretionary review is based.” N.C. R. App. P. 16(a) (1975),  -reprinted at 287 N.C. 671.

The practice of permitting review of nonspecific dissents seems to have disappeared with the promulgation of the 1983 amendments to the North Carolina Rules of Appellate Procedure.  Those amendments relating to dissents are still in place.  Amended Appellate Rule 14(b)(1) now states that a Notice of Appeal to the Supreme Court based upon a dissent in the Court of Appeals “shall state the issue or issues which are the basis of the dissenting opinion and which are to be presented to the Supreme Court for review.”  Amended Appellate Rule 16(b) now similarly states that “When the sole ground of the appeal of right is the existence of a dissent in the Court of Appeals, review by the Supreme Court is limited to a consideration of those issues that are (1) specifically set out in the dissenting opinion as the basis for that dissent…”

The Supreme Court has applied the 1983 amendments strictly.  In C.C. Walker Grading & Hauling, Inc., v. S.R.F. Management Corp., 311 N.C. 170, 176, 316 S.E.2d 298, 301 (1984), the Court stated: “Where an appeal of right is taken to this Court based solely upon a dissent in the Court of Appeals and the dissenter does not set out the issues upon which he bases his disagreement with the majority, the appellant has no issue properly before this Court.  Such appeals are subject to dismissal.”  The Supreme Court then showed its softer side by treating the appellant’s notice of appeal as a petition for discretionary review and addressing the appellants’ issues anyway, but the warning is unmistakable.

Bear in mind, of course, that Thabet defendant-appellant may not want to appeal further.  But if he does seek to appeal to the Supreme Court, what happens next?  My first thought was that the first step might be to return to the Court of Appeals by moving for reconsideration and specifically asking for a detailed dissent.  Defendant-appellant apparently had the same thought.  Two days after the opinion was issued, counsel filed “Defendant-Appellant’s Motion Requesting Issuance of a Written Dissenting Opinion.”  This motion was denied the following day, on 21 September 2018.  Defendant might file a motion for rehearing en banc, but so far no such motion has ever been granted.

If defendant-appellant is bent on Supreme Court review, he might argue that the Court of Appeals majority opinion addressed only one issue and therefore the issue raised by the dissent is self-evident. However, the safest course is to appeal while filing a simultaneous petition for discretionary review that specifies the issue to be argued.

If defendant-appellant does appeal to the Supreme Court, my hunch is that the Court will hold that the nonspecific dissent did not trigger an appeal of right but may nevertheless find a route to hear appellant-defendant out, as the Court did in C.C. Walker.  Remember folks, you heard it here first.

So what do we have now? Brave new world or back to yesteryear?  Any thoughts?

–Bob Edmunds

 

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One Response to "Dissent Into The Maelstrom"

  • Jake
    October 4, 2018 - 9:05 am Reply

    It seems to me that the C.C. Walker court was conflating two separate issues: (1) whether an appeal is properly before the Supreme Court and (2) what the scope of review is for that case. If we assume that N.C.G.S. § 7A-30 means what it says–that the aggrieved party has an appeal as of right from any case with a dissent–then what Appellate Rules 14 and 16 are addressing are the ancillary questions of what issues can be properly asserted in that undisputedly proper appeal. True, given Rule 16’s language, it may just be semantics to say that an appeal is proper but no *issue* is properly before the Court, but it seems to me that one could read Rule 16–in light of the recognition that there can be no disagreement that the predicate grounds for the appeal exist–to mean that *if* there’s a dissenting opinion, the appellant cannot raise issues not specifically set forth therein. But if there’s *not* a separate dissenting opinion, then any issue fairly within the words “I dissent” is properly before the Court. On this reading, Rule 16 is a rule of exclusion (appellant can raise no issues purposely omitted) not a rule of inclusion (appellant can raise only issues actually included). This doesn’t seem hard to police: if the majority addresses issues X, Y, and Z, and each are individually necessary to, say, affirm the lower court, then a bare dissental should be read to mean that the dissenter disagrees on each issue (or else we’d expect a dissenting in part and concurring in part description). Similarly, if the majority addresses issues X, Y, and Z, but any one alone is sufficient to affirm the lower court, a bare dissental likewise should be read as disagreement on all three (or else we’d expect at least a concurrence in the judgment). Things may be trickier with other combinations, and in opinions reversing the lower court, but it seems to me that it’s a bit form-over-substance to subject an appeal based on a dissent to dismissal when the plain text of the statute and Rules make clear that the *ground* for the appeal are satisfied (i.e., the existence of the dissent).

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