As I forecasted two weeks ago, the State v. Hardaway case could present a clean opportunity for the North Carolina Court of Appeals to hold its first-ever en banc (re)hearing. Yesterday, we took a step closer to having that become a reality, as the defendant has now moved for rehearing en banc and for a stay of the mandate.
The case “cries out” for en banc rehearing, says his counsel, former NC Supreme Court Justice Sam J. “Jimmy” Ervin, IV. Rehearing before the entire court is necessary to “secure or maintain uniformity of the court’s decisions,” he continued, quoting N.C. R. App. P. 31.1(a)(1).
Next, the Court of Appeals is likely to stay the issuance of the mandate so it can consider the motion for rehearing en banc. The State then has the ability to respond to the request for rehearing (by October 28).
It will be fascinating to see if the State decides to oppose the motion. The State, after all, has additional interests beyond the outcome in a single case. As a “repeat player” in the appellate courts, the State might view this case as a good vehicle to have the underlying statutory-interpretation issue decided once and for all.
Stay tuned.
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