Long-time readers of this blog may remember the fun I’ve had finding photos reflecting the ups and downs of en banc rehearing in the Court of Appeals. See here and here, for example.

The General Assembly first authorized en banc review in 2016, with the Supreme Court quickly adding procedures for en banc review a few weeks later.  But while rumors of en banc sittings have existed for years, the Court of Appeals has never once heard a case en banc.

But you would be wrong to assume that en banc review has been a complete bust.  At least one jurist has informally called the procedure “a poor man’s petition for panel rehearing.” That’s not surprising. Panel rehearing is prohibited in criminal cases—which are overwhelmingly indigent appeals. What’s more, the attorney-certification requirement for panel rehearing turns on locating at least two friends (a.k.a., experienced attorneys) willing to sign a petition stating that a panel opinion got it wrong.

Plus, the data indicates that a motion for en banc rehearing has more effect than you might think Court of Appeals Judge Allegra Collins’s L.L.M. thesis was recently published in the Journal of Appellate Practice And Process: “A Motion For En Banc Rehearing In The North Carolina Court Of Appeals: A Petition For Panel Rehearing In Disguise?” The thesis, which is well worth a full read for its insights and recommendations, can be found here. 

Judge Collins has concluded that en banc rehearing in the Court of Appeals “has become a de facto petition for panel rehearing and that the rules governing those rehearing processes should be amended to accurately reflect the current practice,” while also implementing changes to reflect best practices.  The thesis reports that from 2016 to 2022, motions for en banc rehearing were denied or dismissed in 158 appellate cases.  But out of those cases, the three-judge panel that issued the original opinion withdrew, amended, and filed a revised opinion in 19 individual cases. 

I’d love to know your thoughts on Judge Collins findings, as well your theories on the Court of Appeals en banc authority.  Why has the Court of Appeals never conducted en banc review?  Is the authority being used to its full potential? Will the elimination of notices of appeal based on a dissent make en banc review more likely? What changes would you recommend for making en banc review more helpful to practitioners and the appellate courts?    

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