In the last year, I have written 75+ opinions, including at least 10 dissents. Although writing a dissent often means more work for me and my staff, I think its important that when I disagree with the majority opinion to express why I believe that. It can also be important to the parties in the case, because by statute, a dissent from the Court of Appeals provides the losing party with an appeal of right to the North Carolina Supreme Court.
The statute reads: § 7A-30. Appeals of right from certain decisions of the Court of Appeals. Except as provided in G.S. 7A-28, an appeal lies of right to the Supreme Court from any decision of the Court of Appeals rendered in a case: (1) Which directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) In which there is a dissent when the Court of Appeals is sitting in a panel of three judges. An appeal of right pursuant to this subdivision is not effective until after the Court of Appeals sitting en banc has rendered a decision in the case, if the Court of Appeals hears the case en banc, or until after the time for filing a motion for rehearing of the cause by the Court of Appeals has expired or the Court of Appeals has denied the motion for rehearing.
Ultimately, that means that the North Carolina Supreme Court will make the final decision should the losing party choose to exercise their appeal of right. Often, they may read the opinions and decide not to further appeal. They may make that decision for a variety of reasons including financially or even the desire for finality. However, if they do decide they want to move forward, they now have at least that right.
At the Supreme Court, the Court can just adopt the Court of Appeals’ majority opinion. They may decide the case on the same basis or maybe something totally different. Sometimes, the Court may even adopt the Court of Appeals’ dissent reasoning as its own. That’s exactly what happened to me in one of my appeals back when I was in private practice. I lost a case in front of the Court of Appeals on a 2 to 1 decision. In that case, the judge that agreed with our side but that was in the minority, wrote a very strong dissent. That dissent gave my clients the right to further appeal to the NC Supreme Court which they did because they felt so passionately about their case.
After hearing oral arguments, the Supreme Court reversed the Court of Appeals decision and adopted the dissent’s reasoning. What’s more, the Supreme Court did that per curiam which means all the justices agreed in the decision. It was a big win for both me and my clients and one that I have not forgotten. But for that single judge on the Court of Appeals taking the time to write a cordial dissent when he disagreed with his colleagues, the Supreme Court would not have had to take that case and likely would not have based on the very few instances they were granting discretionary appeals at that time. That dissent was key to my client’s ultimate victory.
Now, in this job, I remember that experience when I disagree with my panel colleagues on the Court of Appeals. On occasion, we just have honest differences in our views of the case law. When that happens, I take the time to write that dissent which gives the parties the same opportunity a judge once gave me.