COA Appears To Recognize Its Error in Ribble v. Ribble

On Oct. 19 I posted about an incorrect decision by the COA. (See "COA Going A Little Too Far With Rules Violations," discussing Ribble v. Ribble.) The COA in Ribble dismissed an appeal on the basis that the appellant omitted from the Record on Appeal the certificate of service attached to his notice of appeal. The Ribble opinion was directly contrary to SCT precedent.

Well, yesterday the COA sua sponte issued an order withdrawing its Ribble opinion. According to the COA's docket, the order reads: "IT IS HEREBY ORDERED that the opinion filed in this case on 17 October 2006 be withdrawn. The Clerk of the Court of Appeals is hereby directed not to certify said opinion. This cause is retained by this Court for disposition by the panel to which it is assigned."

Withdrawing that decision was the right thing to do. The interesting question is whether the SCT's Viar decision is affecting how COA judges interpret the rules of appellate procedure, causing them to intepret rules more stringently than necessary. We will address that topic in a later post.

Spotlight on Judges Series: Judge James A. Wynn, Jr.

The Raleigh Appellate Group is honored that Judge James A. Wynn, Jr., the senior associate judge of North Carolina's Court of Appeals, has agreed to be our inaugural guest in a new recurring NC Appellate blog feature, Spotlight on the Judges.

Judge Wynn first joined the North Carolina Court of Appeals in 1990, and he was an Associate Justice on the North Carolina Supreme Court in 1998. During the Clinton administration, Judge Wynn was nominated to the United States Court of Appeals for the Fourth Circuit.

Judge Wynn received his BA in journalism at UNC-Chapel Hill and his law degrees from Marquette University Law School and the University of Virginia School of Law. Judge Wynn is a Captain in the US Navy Judge Advocate General Corps and serves as the Commanding Officer of the Navy Reserve Judicial Unit. Judge Wynn is also a husband and the father of three sons, the eldest of whom is following in his father's footsteps and is a first-year law student at Harvard.

Judge Wynn, please identify the one federal or state court judge, living or deceased, whom you admire most and explain why.

I admire Thurgood Marshall for the depth of his experience and for his courageousness and commitment to the rule of law. At the state level, I will always admire Henry Frye and Cliff Johnson, two of the most honest, decent, ethical, totally committed individuals I've ever known who brought to our courts not just representative diversity but also substantive diversity. They were tough as nails, but wonderful. And Cliff Johnson was the sharpest dresser this court ever saw.

What are your most favorite and least favorite aspects of being an appellate judge?

What I like least is that we are somewhat isolated from the legal community and the general public. We don't have day-to-day contact with lawyers and parties. Our work is confined generally to records, briefs, and contact with clerks and other judges. It's a very limited environment to work in. And this limited environment links back to my answer to your first question and the importance of diversity at the court.

What I like most is the challenge of addressing tough legal issues in differing factual scenarios and shaping legal opinions that affect not only the litigants in the matter but citizens across North Carolina. We have to give extra care to what we do because of stare decisis, because we affect other litigants and other judges.

How would you describe your judicial philosophy?

I seek to be fair and impartial in my decision-making. If the law is clear and unequivocal, I surely follow it. The difficulty comes in decisions where the law is not so clear and the decisions are not cut and dry. In those instances, I seek analogous law in cases and statutes and apply my understanding of the law along with common sense to reach a decision that I believe represents a correct reading of how the matter should be decided under our laws.

Of the many opinions that you have written since joining the Court of Appeals, what opinion/opinions -- majority, concurring, dissenting, or other -- has/have been the most memorable and why?

One of the most memorable was Nelson v. Freeland, when I was on the Supreme Court. That was the case where we abolished the distinction between duties of care owed to licensees and invitees. Burley didn't necessarily disagree with my reasoning, but he felt we should save the issue for another day since the parties had not briefed it. But there was no "another day" for me on the Supreme Court, as I had less than 30 days remaining on my appointment to that Court since I had lost the November election to stay there. One thing Burley did make clear after the decision, and I'll always admire him for this--he said that the Court wouldn't revisit the decision the next term simply because the composition of the court had changed. Burley believed in the integrity of the Supreme Court as an institution.

At the Court of Appeals, my dissents tend to be more memorable. For example, my dissent in Vernon v. Mabe Builders, where I dissented on the basis that the Industrial Commission had to import notions of fairness when considering settlements.

Many of these opinions I think probably make a difference in the laws of North Carolina, but I don't take them as badges of honor. I don't separately concur or dissent for honor, I do it because of what I believe is the right result. And when you stick with that principal, those opinions may not be the law now, but I think they will become the law.

Early in my judicial career, I had a case about whether a jury could employ last clear chance in the case of contributory negligence. It boggled my mind that we hold on to contributory negligence, even though it's been vilified, even in England where it originated. That one opinion got more headlines that you could imagine. But I was just trying to apply my best logic and reasoning, which may not be the most politically correct, but that's not my job. I'm a judge, not a politician.

The U.S. Supreme Court in Republican Party of Minnesota v. White struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on legal disputes and political issues. As a judge subject to popular election and as an NC voter in the midst of election season, how do you view the U.S. Supreme Court's ruling, and how do you view elections as a means of picking judges?

For the past three and a half years, I have served on the Joint Commission to Evaluate the ABA Model Code of Judicial Conduct precipitated by the White decision. White does not compel speech, it simply says a state may not prohibit a judicial candidate from announcing his or her views on disputed legal subjects. Interesting, only eight states had such a judicial canon at the time of White, and North Carolina was not one of them.

White does not address the further issue of whether a state may prohibit a candidate from making pledges or promises.

Also, most states prevent judges from directly soliciting campaign contributions, especially from the attorneys whose cases come before them. In North Carolina, now you can. North Carolina's canons were changed to allow judges to do all kinds of things they couldn't do before. It is disappointing to me that the bar and judiciary haven't looked more openly and more deeply into where the lines should be.

In your recent dissent in State v. Peterson, you discussed the role of the N.C. Court of Appeals. What do you see as the role(s) of the N.C. Court of Appeals and your role(s) as a judge on that court?

The Court of Appeals is a working court in which each judge writes over 120 opinions per year. We rarely pass off appeals as per curiam although we could surely do so in many cases arising from agency decisions. But as a matter of jurisprudence, our role is limited. We can't, for instance, abolish common law, as we found out when this Court attempted to abolish the common law of alienation of affections. We can't overrule the decision of another panel, although at times there may be a conflict in our rulings. In recent years, with the Supreme Court issuing less written opinions and affirming our opinions based on dissents, I believe the judges on this Court feel a greater need to explain the law and engage in dicta.

I also think the right of the party to appeal based on a dissent is very powerful. We are the only appellate court that I know of with that power. This is particularly important because only one panel binds all other panels. That two judges can render a decision that it will take four justices to overturn--that's pretty powerful. The opinion of those two judges is otherwise binding on all other judges.

I have been told that three judges unanimously can't certify issues to the Supreme Court. I continue to think this is illogical. Just one judge can certify issues for Supreme Court review, but three judges can't. That is totally illogical.

I think this is one of the most powerful appeals courts in the country, and each of us needs to be very careful about the decisions we render.

In your recent concurring opinion in Broderick v. Broderick, you discuss some of the confusion and disparity of rulings in the wake of the Supreme Court's Viar v. N.C. Department of Transportation decision regarding the Rules of Appellate Procedure. In the opinion, you suggest that assignments of error should be abolished and that the Rules of Appellate Procedure should be applied in a predictable fashion. How do you envision our path out of the Viar confusion, and what changes, if any, would you like to see to our appellate rules and/or their application?

I think there should be changes to the rules, though I don't think they would need to be significant. But I don't see the kind of leadership needed to make those changes.

We need to return to the basics and reexamine the purpose behind the rules. We need to move away from dismissing appeals based on technical rules. I mean, we moved away from common law pleading; why are we doing it on appeal? Dismissing appeals is so easy--no research, no effort. You just say "Improper spacing, wrong font in your footnotes. Dismissed."

It's intriguing that the federal courts don't require assignments of error and don't dismiss like this for rules violations. Especially assignments of error--no one knows what they're supposed to look like anymore, or what's adequate and fair. The assignments are supposed to give the non-appealing party notice about the issues on appeal, but I rarely have seen that become a problem. We need to employ more common sense, and we need to try to do our job and give answers, not just dismiss.

Rules are important. But when we strictly apply rules, we are denying our citizens access to justice. When this court, and the opposing party, can understand the issues, we owe it to our citizens and the system of justice to decide cases on the merits.

What qualities do you look for in deciding whom to hire as a law clerk?

I examine the writing and research abilities of the applicants. I try to look at students from the North Carolina law schools, though that's not necessary. I evaluate the letters of recommendation and how well the applicants did in school. And a successful applicant must be pleasant, respectful, and loyal.

What are the three most important suggestions you have for attorneys regarding how to improve their written work product filed with the Court of Appeals?

First, clearly identify the most important issues for the court. This is so important.

Second, be sure to include a good, thorough set of facts that cites to the record.

Third, conduct honest and thorough research, and discuss your research in a persuasive but also fair way.

What are some of your pet peeves that you see fairly consistently in the briefs filed with the court?

Briefs that run on and on with reasoning that is difficult to follow. It's also troubling when parties fail to conduct adequate legal research or fail to consider the application of contrary law. And I don't like redundant briefs--don't say the same thing over and over.

What are the three most important pieces of advice you have for attorneys regarding how to improve their performance at oral argument?

Be prepared! You need to know your case better than the judges.

Second, remember you only have thirty minutes to talk to judges, not a jury. So avoid the impassioned rendition of the facts and allusion to the parties. It may entertain the clients attending but it does not help with the writing of the opinion.

Third, start with the "deep issue: by following one of my favorite writing teachers (Bryan Garner of LawProse, Inc.) advice. Start with an introduction beginning with the major premise, then the minor premise and then a conclusion sentence. It creates a persuasive outline for the court to follow as you go into your discussion.

What are things that a lawyer might do at oral argument that will inadvertently contribute to losing the case?

When lawyers are asked questions and the lawyer either ignores the questions or keeps talking right over the judge.

Lawyers' failing to give deference to a judge when it's clear a judge wants to ask a question.

Being argumentative in response to questions.

And lawyers' being disparaging in their language. That's unacceptable. Be courteous--we're professionals.

COA Going A Little Too Far With Appellate Rules Violations

There have been a spate of recent decisions where the COA has dismissed appeals on the basis of technical rules violations or disputable rules violations. In some of these cases the COA has interpreted or applied the rules of appellate procedure as stringently as possible, imposing requirements that aren't necessarily mandated by the text of the rules. This week saw another example of this phenomenon in the COA.

Over a decade ago the N.C. Supreme Court unanimously held that if the Record on Appeal (ROA) omits the certificate of service that was attached to the notice of appeal, that is not grounds for dismissal of the appeal, at least so long as the appellee does not object. Hale v. Afro-Amerian Arts Int'l, Inc., 335 N.C. 231, 436 S.E.2d 588 (1993) (per curiam) (reversing dismissal of appeal and adopting dissenting opinion of Judge Wynn in the underlying decision). The Supreme Court in Hale reversed the COA and expressly rejected the COA's conclusion that there's a jurisdictional defect when the certificate of service for a notice of appeal is omitted from the ROA.

Yet two days ago a panel of the Court of Appeals, in an unpublished decision in Ribble v. Ribble, dismissed an appeal ex mero motu simply because the ROA did not contain the certificate of service for the notice of appeal. The panel relied on the same "jurisdictional defect" rationale rejected by the Supreme Court in Hale. The panel did not cite Hale.

To make matters worse, the panel dismissed the appeal even though the ROA contained the notice of appeal and a document signed by the appellant stating that all pleadings in the ROA were timely served and that the therefore the appellant deemed it unnecessary to include certificates in the ROA.

The Ribble panel relied on Appellate Rule 3 (which is jurisdictional) and concluded that the omission of the certificate from the ROA was a Rule 3 violation. But that is incorrect. Rule 3 has nothing to do with the ROA. Rule 3 requires (only) that a notice of appeal be timely filed and served. In Ribble there was no question that the notice was timely filed: the filed-stamped notice was reproduced in the ROA. Nor was there a dispute that the notice was timely served: the ROA contained the appellant's signed document stating that all pleadings in the ROA (including the notice of appeal) were timely served. Thus, there was no Rule 3 violation.

The Ribble panel also cited Appellate Rule 26. But Rule 26 simply requires that papers filed with a court be served and that proof of service (a certificate of service) be affixed to the paper. It has nothing to do with the ROA. In any event, the panel does not suggest that Rule 26 is jurisdictional. The COA has already held, on the basis of Hale, that Rule 26 is not jurisdictional. Henlajon, Inc. v. Branch Highways, Inc., 560 S.E.2d 598 (N.C.App. 2002).

The panel also cited a COA case from last year, Krantz v. Owens (N.C.App. 2005). But Krantz is distinguishable for at least two reasons. First, in Krantz the panel cited the omission of the certificate of service as one of numerous rules violations warranting dismissal. The other rules violations independently supported dismissal. Krantz doesn't stand for the proposition that the omission of a certificate of service for the notice of appeal independently warrants dismissal. Second, and critically, the ROA in Krantz did not contain a signed document (which Ribble did) stating that all documents in the ROA were timely served.

In any event, insofar as Krantz can be read to say that the omission of the certificate is a Rule 3 violation, Krantz is wrong: it is impossible to square with the Supreme Court's decision in Hale; and it misreads Rule 3 which, as noted, has nothing to do with the ROA. Indeed, the three cases that Krantz cited as authority are easily distinguishable: two were cases in which the ROA omitted the notice of appeal itself, in violation of Appellate Rule 9, which specifically requires that the notice appear in the ROA; and one case had nothing to do with the ROA but instead involved an untimely notice of appeal.

Unfortunately, this is not the first time the COA has failed to follow Hale. In 1997, four years after Hale, the COA dismissed an appeal for failure to include a certificate of service in the ROA. The SCT summarily reversed on the basis of Hale. See Edwards v. West, 492 S.E.2d 356 (N.C. 1997). The following year, the SCT again had to reverse the COA, ordering, pursuant to Hale and Edwards, that "the Court of Appeals is directed to hear and determine plaintiff's appeal." Hill v. Town of Cape Carteret, 500 S.E.2d 96 (N.C. 1998). Which leads one to wonder: What does the COA have against Hale?

COA: Failure To Notify Superior Court Of Failure To Agree On Mediator Isn't Grounds For Dismissal

In Gailey v. Triangle Billiards & Blues Club, Inc., decided today, the COA held that a plaintiff's failure to notify the trial court that the parties couldn't agree on a mediator is of no consequence. In Gailey the superior court's boilerplate mediation form requires a plaintiff to notify the court within 21 days if the parties can't agree on a mediator. Plaintiff failed to notify the court. So defendant moved (a week before trial) to dismiss the action with prejudice, and the superior court granted the motion. The COA reversed because the statute governing the selection of mediators (G.S. 7A-38.1(h)) and the N.C. Supreme Court rules provide that the senior resident superior court judge has a duty to appoint a mediator in the event the plaintiff has not filed a notice of selection of a mediator within 21 days.

COA Holds That Punitive Damages Can't Be Awarded When The Wrongdoer Has Died

On a day when a federal court has erased the conviction of Ken Lay because he died before he could appeal, in Harrell v. Bowen the COA held that punitive damages can't be awarded when the defendant has died (i.e., can't be awarded against an estate). The COA reasoned that G.S. 1D-1, which governs punitive damages, says that the purpose of punitives is to punish the defendant and to deter the defendant and others from committing similar wrongful acts, but it isn't possible to deter a deceased person from engaging in future conduct, and therefore a claim for punitives should die if the wrongdoer dies. The COA observed that a minority of States hold that an award of punitive damages is not barred when the wrongdoer has died; these courts have reasoned that, while the deceased can't be deterred, the citizenry at large nonetheless may be deterred. The COA said that this was a policy issue reserved for the General Assembly.

COA: Nunc Pro Tunc Extensions To Serve Proposed Record OK And No Personal Jurisdiction Over Director

In Robbins v. Ingham, filed today, the COA held that trial judges may grant extensions to serve proposed records on appeal, even well after the deadline for service has passed.

In Robbins, the plaintiffs (James Robbins, Thomas Robbins, Robbins Investments, and Robbins Invfro) had to serve their record on appeal by Sept. 12. Instead, they served it on Oct. 11. Thereafter, plaintiffs filed a motion to have the proposed record deemed timely served. The trial court construed that motion as a motion for a 30-day extension of time, granted the motion, and thereby deemed the proposed record timely served. The COA held that the extension was not an abuse of discretion.

The extension here may have been seen as justified due to some confusion about an extension granted to one of the defendants, who had initially been preparing the record in this case (which involved cross-appeals). Nevertheless, it's striking in this era of dismissals for seemingly minor (or arguably non-) rules violations (see, e.g., Ribble v. Ribble, also filed today, dismissing appeal for failure to include notice of appeal's certificate of service, to which parties stipulated, in record on appeal) that a step as important to perfecting an appeal as serving a proposed record can be done a month late essentially without consequence.

In Robbins, the COA also held that an individual corporate director (of Trinity Court Management, Ltd.) was not subject to personal jurisdiction in NC based solely on the company's contacts with NC, but that some individual contact on the part of the director would have been required.

COA: Individuals Have Standing To Serve As Representatives Of Class Including Corporations

In Dunn v. State, filed today, the COA held that individuals could serve as class representatives of not only individuals, but also of corporations, and affirmed class certification. The plaintiffs alleged that the State impermissibly taxed taxpayers, including individuals and corporations, on interest from municipal bonds issued by state and local governments outside North Carolina, while not taxing interest from municipal bonds issued by North Carolina state and local governments.

The COA held, among other things, that the individual named plaintiffs had standing to represent not only individual tax payers but also non-individual taxpayers such as corporations. While the COA recognized that non-individual taxpayers are governed by different statutes and, at least in the case of corporations, different income taxation rates, the different governing statutes were very similar. The COA found "[m]ost significant[]" that the allegedly unconstitutional statutes, which provide for taxation of non-North Carolina municipal bond interest but not North Carolina municipal bond interest, are the same for individuals and non-individuals. The named plaintiffs' interest in the lawsuit affecting corporations was, therefore, held to be personal and not merely technical.

Two Regulatory Cases On The Supreme Court's Oral Argument Calendar This Week; Both Raise Constitutional Questions

With the November election approaching and 4 of 7 Supreme Court seats up for grabs, the Court has oral arguments this week. On the calendar are a couple of interesting cases affecting businesses: Robins v. Town of Hillsborough and N.C. Board of Pharmacy v. Rules Review Commission. Both cases involve new government regulations on business. Both cases involve split COA decisions against the regulators. Both cases raise constitutional issues. Both cases are discussed below.

1. Robins v. Town of Hillsborough
(argument on October 16, 2006)

Most businesses will sympathize with Robins. He wanted to construct an asphalt plant in the Town of Hillsborough. He bought property for the facility and applied for site plan approval. At the time Robins filed his application, the zoning ordinance permitted an asphalt plant there, and in reliance on that zoning ordinance, he spent about $100,000 to comply with the ordinance and prepare for the required public hearings. The Town held several public hearings but reached no decision. A fourth hearing was scheduled, but a week before the hearing, the Town adopted a new zoning ordinance imposing an 8-month moratorium on manufacturing and processing facilities involving the use of petroleum products, including, specifically, asphalt plants. The moratorium applied to Robins's pending application. The Town then made the moratorium permanent, amending its zoning ordinance to ban such facilities within the limits of the Town. The ban applied to all pending applications, including Robins's.

Robins sued. The trial court granted summary judgment to the Town, but the COA reversed in a split decision, handing Robbins a victory. Judge Tyson wrote the majority opinion, joined by Judge John. Judge Jackson dissented.

The majority opinion had two holdings. First, on the basis of a common law "vested rights" theory, the majority held that Robins was entitled to rely on, and have his application considered on the basis of, the language of the zoning ordinance that was in effect at the time he applied for the permit. "To hold otherwise would allow compliance with regulations and permitting to become a moving target to ever changing revisions and amendments." In short, the majority essentially recognized a vested right to have a zoning ordinance remain unchanged while an application is pending. The majority thus reversed the grant of summary judgment to the Town.

Having held that Robins was entitled to have his permit application considered (grandfathered) under the zoning ordinance in effect at the time he applied for site approval, unaffected by the later ban, it is unclear why the majority went any further. But it did. The majority proceeded to address a facial challenge to the constitutionality of the Town's ban on manufacturing and processing facilities using petroleum products, a challenge under the "Law of the Land Clause." (The Law of the Land Clause, which is in Article I, Section 19 of the State's Constitution, is analogous to the federal Due Process Clause.) Ruling against the Town, the majority held that a trial is needed on the constitutionality of the ban.

The majority began its constitutional analysis by observing that due process prohibits arbitrary governmental action or action that doesn't reasonably serve a legitimate governmental objective. While this bespeaks rational basis review (where governmental action is presumed constitutional, and the burden falls on the challenger to establish the absence of a rational basis), the majority actually applied heightened scrutiny to this economic regulation. Seizing on the distinction between a zoning ordinance that imposes a total ban on lawful activity and one that imposes a more limited regulation (e.g., confining an activity to a particular location in the community), the majority concluded that the Town's ban was not entitled to a presumption of constitutionality; instead, the burden was on the Town to prove constitutionality - a burden to demonstrate a "substantial relationship" between its ban and a legitimate governmental interest. (The only support cited for this standard consisted of language from Michigan and Pennsylvania cases decided more than 30 years ago.)

Having so held, the majority remanded for a trial because, the majority concluded, a genuine issue of material fact exists as to whether "the public purpose [the Town] sought to accomplish by a total and permanent ban on asphalt plants is legitimate and whether [the Town's] decision to place a permanent ban on asphalt plants was not arbitrary and capricious." "The burden of proof," the majority held, "rests upon defendant [the Town]."

Judge Jackson's dissent contended, among other things, that had Robins received a permit he would've had a vested right, but he never received a permit, and therefore he had no vested right. And, consequently, he had no property interest protected by the Constitution.

It'll be interesting to see whether the Supreme Court embraces the majority's "vested rights" approach and its heightened scrutiny for what is, in essence, a substantive due process challenge to an economic regulation. By shifting the burden of proof to the Town to demonstrate a "substantial relationship" between its new regulation and public health, safety, or welfare, the majority essentially created a standard of intermediate scrutiny for substantive due process and equal protection challenges to exclusionary zoning laws. (This at a time when the Town of Apex is considering a ban on hazmat processing facilities after the recent well-publicized fire at an Apex hazmat facility.)

2. N.C. Board of Pharmacy v. Rules Review Commission
(argument on October 18, 2006)

This case raises questions about the manner in which agency rules become law in N.C. It concerns the constitutionality of the Rules Review Commission (RRC), a statutorily created executive branch agency whose 10 members are appointed by the General Assembly. If the Court invalidates the RRC's role, it could be one of the most significant administrative law decisions ever decided in this State.

By statute, whenever a state agency adopts a rule, the agency must submit the rule to the RRC. The RRC reviews the rule to ensure, among other things: that it's within the statutory authority delegated to the submitting agency; that it's clear and unambiguous; and that it's reasonably necessary to implement or interpret a statute. If the RRC determines that a rule doesn't meet these criteria, it must send a written objection to the agency that adopted it. The agency may revise the rule to meet the RRC's objection and resubmit a revised rule to the RRC. The agency may also seek judicial review by suing the RRC, or the agency may give up.

No rule may become effective or be included in the N.C. Administrative Code unless it has been approved by the RRC. In effect, the RRC blocks every rule it doesn't explicitly approve.

This case arose when the Pharmacy Board adopted a new rule to regulate working hours for pharmacists (the Board was concerned that a pharmacist working too many consecutive hours has an increased risk of making a filling error). The Board submitted the rule to the RRC, and the RRC objected, concluding that the rule exceeded the Board's statutory authority. The RRC declined to remove its objection and returned the rule to the Board, so the rule couldn't become law.

The Board then filed this action for judicial review. The Board sought a declaratory judgment that it does have statutory authority to adopt the rule. The Board also sought a declaratory judgment that the statutes requiring the RRC to review and approve administrative rules violate the separation-of-powers requirement in the North Carolina Constitution. See N.C. Const. Art. I, sec. 6 ("The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.")

The COA, in a split decision, held that the Board exceeded its statutory authority in regulating working hours. Judge Steelman dissented on this question of statutory authority. None of the judges addressed the Board's constitutional challenge to the RRC's role.

On the basis of Judge Steelman's dissent, the Board appealed the statutory authority question to the Supreme Court as a matter of right. Interestingly, the Supreme Court also granted the Board's separate PDR on the constitutional question whether the statutes establishing and defining the RRC's role in administrative rulemaking process violate the separation-of-powers doctrine.

The Board contends that the RRC's role breaches the separation of powers in many respects. For example, the Board says the RRC encroaches on the judicial power because interpreting statutes and deciding the limits of an agency's statutory authority are judicial functions which the General Assembly can't confer on the RRC. The Board also argues that the RRC's power is a legislative power exercised in violation of the "bicameral passage" and "presentment" requirements that the Constitution requires to make or nullify a law. Invoking the specter of an unconstitutional "legislative veto," the Board contends the General Assembly has evaded these requirements by authorizing the RRC to nullify agency rules that otherwise would have the force of law.

The RRC is supported in this case by a vast array of amici curiae representing business and industry. If the Court were to reach the constitutional challenge (it may not) and invalidate the RRC's role, it could be one of the most significant administrative law decisions ever decided in this State.

The Court should proceed with caution. The RRC helps restrain overreaching by administrative agencies before their rules are unleashed on the public, protecting the public from rules that have no statutory authority and relieving regulated persons of the burden of challenging bad rules in court. It gives the executive branch an effective internal mechanism for quality control and uniformity with centralized review undertaken by a neutral commission. While the RRC has nullified only a small percentage of rules enacted by agencies (over the four-year period from 2000 through 2004, the RRC returned only about 1% of about 5,600 rules that agencies filed with the RRC), those statistics don't show the deterrent effect of the RRC. It's difficult to know how many additional rules might've been enacted if agencies didn't have to worry about scrutiny from the RRC.

Fourth Circuit Issues Opinions In Divided 5-5 Ruling On Petition For Rehearing En Banc In Contentious Title VII Case Alleging Retaliatory Discharge

Today the Fourth Circuit issued opinions in Jordan v. Alternative Resources Corp, a contentious Title VII case involving an alleged retaliatory discharge.

Jordan, an African American employee, allegedly was fired after reporting to management an exceedingly offensive, racist remark made in the workplace by a coworker. He sued his employer for retaliation in violation of Title VII.

The district court dismissed the complaint for failure to state a claim. A Fourth Circuit panel affirmed in a split decision in May 2006 (Judge Niemeyer authored the majority opinion; Judge King dissented). The panel then granted rehearing and vacated its decision, but ultimately produced the same result in a revised opinion. The employee petitioned for rehearing en banc, and after Judges Motz and Williams were disqualified, the remaining 10 judges split 5-5 on the petition. Because en banc rehearing cannot be granted unless a majority of qualified active judges vote "yes" (see FRAP 35(a)), the tie went to the employer. The judges who voted to rehear the case en banc: King, Michael, Traxler, Gregory, and Wilkins.

Title VII says, "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter." Courts have held that an employee's opposition activity (e.g., report to management) is protected when it responds to an employment practice that the employee reasonably believes is unlawful, even if it isn't in fact unlawful. In determining that Jordan didn't reasonably believe he was complaining of a hostile work environment made unlawful by Title VII, the majority reasoned that "the mere fact that one's coworker has revealed himself to be a racist is not enough to support an objectively reasonable conclusion that the workplace has likewise become racist."

According to Judge King's dissent, the majority decision places employees in a "Catch-22" and "untenable position" by "requiring them to report racially hostile conduct, but leaving them entirely at the employer's mercy when they do so."

Fourth Circuit In Durham on Fri., Oct. 27

The Fourth Circuit will hear oral arguments at NC Central University on Fri., Oct. 27 at 9:00 am. Cases slated for the session: a criminal case, an Individuals with Disabilities Education Act case, and a Fair Labor Standards Act case. For more information, click here.

INDY Article About Judicial Elections, Continued Role Of Donors Despite Public Financing

This INDEPENDENT WEEKLY article posits that the jury is still out on judicial campaign reform, and that big-money donors and lawyers are still influential, despite the relatively new public financing system intended, among other things, to curb such influence.

COA Holds Trial Courts Lack Inherent Power To Award Attorneys' Fees As A Sanction In Contempt Proceedings

In Baxley v. Jackson, decided today, the COA held that a trial court has no inherent authority to order the payment of attorneys' fees as a sanction in contempt proceedings.

In Baxley the trial court (Judge E. Lynn Johnson) held the defendants in civil contempt for wilfully failing to comply with an order of specific performance. And, finding that the defendants' acts hindered and delayed the administration of justice, the court ordered the defendants to pay attorneys' fees to plaintiff's counsel as a sanction. The COA held that the trial court had no authority to impose attorneys' fees as a sanction. The COA reaffirmed that, outside of cases involving child support and equitable distribution, a trial court has no authority to award attorneys' fees in a contempt proceeding unless a specific statute or contract permits it. The COA rejected the notion that trial courts have inherent authority to order the payment of attorneys' fees as a sanction for wilfully failing to comply with a court order.

WUNC's STATE OF THINGS Runs Spot On Challenges Of Judicial Elections

On today's STATE OF THINGS, available here, Frank Stasio explores the politics of judicial elections with UNC-Chapel Hill law professor Bill Marshall and retired NC Supreme Court Justice Bob Orr. A focal point: the challenge to candidates of campaigning and gaining public support while creating a nonpartisan platform and assuring the public that they will remain objective about the cases that come before them.

Unpublished COA Opinion Speaks to Cross-Assigning Versus Cross-Appealing

In an unpublished opinion filed today, Duffield v. Davis, cross-assignments by a plaintiff who won a motion for reconsideration and apparently got essentially the relief she sought were bumped by the COA because the plaintiff argued against the original order that was overturned on reconsideration. The COA said the plaintiff's arguments did not constitute an "alternative basis" for supporting the later order in plaintiff's favor, and therefore the plaintiff should have cross-appealed rather than just cross-assigned error.

Dufield may have turned on the fact that the motion for reconsideration was ultimately deemed improper. Dufield nevertheless suggests that even parties who 'won' at the trial court and arguably lack standing to appeal (based on precedent indicating that if you got the relief you sought, you're not aggrieved and cannot appeal (see, e.g., Templeton v. Apex Homes, Inc., 164 N.C. App. 373, 595 S.E.2d 769 (2004))) may want to carefully consider whether their arguments could potentially be construed, under a strict reading of Appellate Rule 10(d), as something other than an alternative basis for supporting the order appealed. If so, cross-appealing may be a safer bet than just cross-assigning.