No-Merit Briefs, The Pro Bono Program, And En Banc Review

by Fox Rothschild LLP

On Tuesday, the Court of Appeals issued its latest batch of opinions. Good news: the impending turkey feast has not slowed the court’s pace in grappling with interesting appellate issues.  Bad news: still no real resolution for most of them.

Rule 3.1 No-Merit Briefs: A Middle Ground?

In July and October, Kip wrote about the evolving disagreement in the Court of Appeals as to what type of appellate review is required when appointed counsel files a no-merit brief under Appellate Rule 3.1.  While some judges believe that Rule 3.1 requires Anders-type review when a no-merit brief is filed, other judges take the position that Anders review is neither required—nor permitted.

On Tuesday, a panel consisting of Judges Dietz, Inman, and Bryant collectively issued three opinions (In re I.B., In re H.H., and In re J.D.L.B.) that proposed a middle-ground approach.  In re I.B., written by Judge Dietz, contains the analysis that the other two opinions relied on.  It is worth an independent read.  It explains the history and process for Anders review, why the text of Rule 3.1 is causing disagreement in the Court of Appeals, and why this panel believes its hands are pseudo-tied.  Nonetheless, In re I.B., adopted a two-step process that appears aimed at complying with both the letter and the spirit of Rule 3.1.

According to In re I.B., when filing a no-merit brief, appointed counsel is not permitted to withdraw as counsel. Rather, counsel should continue to advise the client regarding any procedural and substantive questions that may arise when the client is preparing his or her own pro se brief.  “The attorney’s continued service assures that the client will be able to file a brief raising the arguments she believes the court should address (which, because the client is not bound by ethical rules concerning frivolous arguments, may include issues the lawyer could not assert).”  Having dealt with a few pro se litigants myself, I could see the value (and the frustrations) that could arise under such an approach. Thankfully, the court did not stop there.

Although the Court of Appeals may not be required to conduct an independent Anders-type review in Rule 3.1 cases, under In re I.B. the court may voluntarily elect to do so.  That is what this panel did in the three different Rule 3.1 cases it decided on Tuesday.

Whether such an approach will win the approval of other judges of the Court of Appeals remains to be seen.  But for the parents that were assigned to this particular panel, no one can say that were not afforded a fair shake due to their attorneys’ filing of no-merit briefs.

Appellate Pro Bono Program, In Re Civil Penalty, and En Banc Review

That brings me to the fourth opinion of the day: Routten v. Routten, which I believe is the first case referred to North Carolina’s Appellate Pro Bono Program (shout-out to Daniel Gibson for taking this case!).

Regardless of which party is right, Routten involved unfortunate facts—a custody dispute between parents in which one parent effectively lost physical custody and visitation rights to her children.  The disagreement arose as to the correct legal standard applicable to those decisions. Routten spawned three different opinions, each focusing on everyone’s (and no-one’s) favorite appellate topic: In re Civil Penalty.

In October, Justice Edmunds explored the history leading up to In re Civil Penalty, while causing many of us to hum “What’s Going On?”  On Tuesday, the Routten majority opinion utilized that history to contend that the dissent had either “overlook[ed] or disregard[ed] In re Civil Penalty.  The dissent punched back that the majority opinion had “conspicuously omit[ted]” key language from binding Supreme Court precedent and not faithfully followed In re Civil Penalty.

The frustration almost leaps out from the 45-page opinion.  Both  judges are clearly seeking to reach the right result under the law, while balancing the precarious equation created by In re Civil Penalty (i.e., first Court of Appeals opinion=presumptively correct opinion ≤ always follow Supreme Court precedent).

Stuck in the middle (literally) of Routten is Judge Berger’s concurring opinion. The concurrence notes that over the past few years, the Court of Appeals “increasingly has overruled precedent on the ground that a case, although published and otherwise controlling, itself failed to follow an even earlier Court of Appeals or Supreme Court case.”  This has left the Court of Appeals “trapped in a chaotic loop as different panels disagree, not only on the interpretation of the law, but also on what law appropriately controls the issue.”

What can the Court of Appeals do to escape this trap?  The concurrence floated two options:

  • Plead for Supreme Court Intervention:  Follow the first Court of Appeals precedent even when erroneous (and perhaps irrational), but make a direct request in the opinion for the Supreme Court to use its powers of discretionary review to announce the correct rule.
  • The Routten concurrence notes that the downside to this approach is that although the Court of Appeals’ “frequent intramural disputes over In re Civil Penalty seem significant to us,” the Supreme Court is simply too busy to intervene in all of these disputes.  Some of you may remember Judge Wynn’s plea during the Viar years for the Supreme Court to abolish assignments of error. See Broderick v. Broderick, 175 N.C. App. 501, 503, 623 S.E.2d 806, 807 (2006) (Wynn, J., concurring).  The Supreme Court in 2009 eventually got around to fixing that issue—but not before a lot of heartache, effort, and disagreement aired in the Court of Appeals.  What if there was a different way?
  • Alternatively, Attempt to Fix It Yourself.  Since the Court of Appeals’ power to sit en banc was approved in December 2016, we have been waiting on the edge of our seats to see how the court will utilize its new power.  The Routten concurrence believes it is time for the Court of Appeals to address conflicts in its own jurisprudence through en banc review.  In other words, the court can use en banc review to “secure or maintain uniformity of the court’s decisions.” Appellate Rule 31.1.  In the event that the en banc court gets it wrong, the Supreme Court can always grant discretionary review to announce the correct rule.

The concurrence notes with regret that although, to date, 61 requests for en banc review have been filed, en banc review has been declined in every single case.  The concurrence then muses about why the judges might be opposed to en banc review. It ends by taking its own advice and imploring for help: “Of course, if the Supreme Court believes this Court should resolve our conflicts en banc, it would be helpful for that Court to say so.”

Can We Wrap Up En Banc Review in Judicial Economy Trimmings?

Are cases like In re I.B. and Routten resolving splits in the Court of Appeals or creating more fractured case law?  True, some of these cases are headed to the Supreme Court. Routten itself is poised for Supreme Court review due to the partial dissent.  Over the past couple of years, we have blogged on a host of intra- and inter-panel disputes that eventually found their way to the Supreme Court’s docket.  Sometimes the Supreme Court resolved the issue, sometimes it did not.  But in each case, a lot of judicial effort was expended in reaching that resolution.  Is North Carolina jurisprudence unique on this front?

It seems to me that in recent years, the Court of Appeals is spending a lot of time and effort analyzing who is applying Supreme Court precedent (including In re Civil Penalty and stare decisis) most faithfully.  That raises a few questions.

  • If the first Court of Appeals opinion is clearly wrong, is there a limit to the amount of effort that should be expended to support or attack that opinion on procedural grounds?
  • How many conflicting opinions should it take for that limit to be reached?  And who is best equipped to solve these issues? Which court should be playing the more active role in resolving conflicts in the decision of the Court of Appeals?
  • Are there reasons why the Court of Appeals should back away from opportunities to be the master of its own jurisprudential ship—at least until (and unless) the Supreme Court intervenes?
  • Would en banc review promote judicial economy at both the Supreme Court and the Court of Appeals, or would it create additional conflict?
  • Would en banc review in a few cases result in the Court of Appeals being overrun with frivolous en banc motions?
  • Is there a serious disagreement as to the Court of Appeals authority while sitting en banc to overrule earlier panel decisions?
  • Are there some types of issues—such as the Rule 3.1 issue flagged by Judge Dietz—that the Court of Appeals may be powerless to address?
  • Are appellate practitioners not submitting the right cases to the court for en banc review?  If so, can the Court of Appeals take a page out of the Supreme Court’s playbook and grant en banc review sua sponte?
  • Why is the batting average on these motions so dismal?
[View source.]


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