For many moons, North Carolina was one of the few jurisdictions in which the losing party at the Court of Appeals could pursue an appeal as of right to the Supreme Court if the party managed to snag a dissenting opinion from the intermediate appellate court. The 2023 budget bill eliminated that statutory right, leaving our Supreme Court with (nearly) full discretion to construct its own merits docket.
The statutory change “applies to appellate cases filed with the Court of Appeals on or after” 3 October 2023. There’s some lingering debate as to what exactly that means, since those words don’t map perfectly onto actual appellate practice. Stay tuned on that front.
Regardless, the change does mean that the volume of dissent-based appeals at our Supreme Court has begun to dwindle, as the older dissent-based appeals work their way through the system. So, it seems like a prudent time to clean up the Appellate Rules to eliminate references to dissent-based appeals that might lead the casual appellate practitioner astray.
And that’s exactly what our Supreme Court ordered earlier this week.
Changing the rules wasn’t as easy as crossing out all language relating to appeals of right, however. After all, we still have a statute on the books allowing appeals of right in cases involving a substantial constitutional question.
So, the Supreme Court took a more surgical approach, excising Rules 14(b)(1) and 16(b) in their entirety and trimming Rule 14(d)(1), among other conforming changes.
The rule changes take effect 1 April 2025.
Hat tip to Jamie Kilbourne and his hardworking subcommittee of the Appellate Rules Committee of the North Carolina Bar Association for its careful analysis and recommendations to aid the Supreme Court in its review of possible rule changes.
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