Links about New Rule
- New Rule itself (included below): http://www.aoc.state.nc.us/www/public/html/pdf/Rule-31.1.pdf
- Detailed procedure from the Ninth Circut: http://michellawyers.com/wp-content/uploads/2010/11/Ninth-Circuit-En-Banc-Procedure-Guide.pdf
- Great Opinion from Florida about what "en banc": http://www.3dca.flcourts.org/opinions/3d04-2939.rh.pdf
- (p. 3) "there must be something about the case itself, rather than (about) an issue decided in the case."
Examples of En Banc motion for rehearing (in NC all done by pro se and denied):
- To the United States Court of Appeals for the Fifth Circut
- Only two page long, with additional stuff later, but primarily stating: "The Opinion conflicts with .... "
- http://www.ca5.uscourts.gov/docs/default-source/sample-briefs/13-20881-en-banc-rehearing.pdf
- United States petitions to the Sixth Circut
- https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/lanhampetrehearing.pdf
- "Invalidation of a congressional enactment obviously reflects a question of “exceptional importance.” See Fed. R. App. P. 35(a)(2)."
- Conflict with holding of US Supreme Court
- Private person to Seventh Circut ...
- https://www.lambdalegal.org/sites/default/files/hively_in_20160825_petition-for-rehearing-en-banc_1.pdf
COA Opinion:
- from Google Scholar: https://scholar.google.com/scholar_case?case=4958067743014500344
- from COA website https://appellate.nccourts.org/opinions/?c=2&pdf=36562
================================
Article (included below): https://www.ncapb.com/2016/12/22/breaking-news-new-en-banc-rules-adopted-by-supreme-court/
The Supreme Court of North Carolina just adopted new Appellate Rule 31.1 entitled “Motions for En Banc Consideration by the Court of Appeals.”
While I am still digesting this rule, I noticed that Rule 31.1(d) states that the denial of a motion for rehearing en banc “will trigger the time for taking an appeal of right to the Supreme Court” or “filing a petition for discretionary review.” However, Rule 31.1(e) indicates that the mandate under Appellate Rule 32 is not automatically stayed by the filing of the motion for en banc consideration. Instead, a party may apply for a stay under Rule 8. Appellate Rules 14 and 15, which govern the time for appealing or filing a petition for discretionary review to the Supreme Court, both state that these appellate filings are due 15 days after the issuance of the mandate. If the mandate is not automatically stayed, how are these timelines calculated?
A few other highlights:
- There are two criteria for en banc consideration: 1) review is “necessary to secure or maintain uniformity of the court’s decision” and 2) “the case involves a question of exceptional importance”
- Motions for initial en banc consideration may be made before the case is heard by the panel, but the motion will not stay the time for briefing
- Motions for rehearing en banc after the issuance of a panel opinion are due 15 days after the panel opinion is filed. Note this is different than a petition for rehearing, which is due 15 days after the mandate issues (35 days after issuance of opinion).
- New en banc briefs are not allowed as of right, but may be requested by the court. Rule 31.1 also does not contemplate the filing of amicus briefs. While amicus briefs are not specifically prohibited, the new rule states that “the case will be reconsidered solely upon the record on appeal, the motion for en banc rehearing, and any responses thereto, new briefs of the parties if requested by the court, and oral argument if the court decides to hear oral argument.”
- “Entry of the en banc opinion vacates the original panel opinion.” Presumably the filing of any new en banc opinion will trigger the mandate to issue 20 days later, thus restarting the familiar timelines for seeking review by the Supreme Court under Appellate Rules 14 and 15. However, if the en banc decision replaces the panel decision, how does that interact with newly amended § 7A-30(2) which states that there is an appeal of right when there is “a dissent when the Court of Appeals is sitting in a panel of three judges” but that this appeal of right “is not effective” until the Court of Appeals sitting en banc has rendered a decision in the case?
- If both a Rule 31.1 en banc consideration motion and a Rule 31 petition for rehearing are filed, the Court will rule on the motion for rehearing en banc first.
- Unlike Rule 31, Rule 31.1 contains no prohibition on motions for rehearing en banc in criminal cases.
- No prohibition or disfavor for en banc review of interlocutory opinions.
- No specific provision allowing Court of Appeals to hear case en banc on its own motion
-Beth Scherer
================================
New Rule (partial conversion from graphic PDF document included below but original PDF must be read for exact wording): http://www.aoc.state.nc.us/www/public/html/pdf/Rule-31.1.pdf
**********‘k*****
ORDER ADOPTING RULE 31.1 OF THE
N ORTH CAROLINA RULES OF APPELLATE PROCEDURE
Pursuant to the authority of Article IV of the Constitution of North Carolina
and N.C.G.S. § 7A-33, the North Carolina Rules oprpellate Procedure are amended
by adding a new Rule 31.1 to read:
Rule 31.1. Motion for En Banc Consideration bv Court ofAnpeals
(a) When Hearinur Rehearing En Banc Mav Be Ordered. A
majority of the iudges 0n the Court of Appeals maV order that an appeal be heard or
reheard bv the court en banc. An en banc hearing or rehearing is not favored and
ordinarilv will not be ordered unless:
(1) en banc consideration is necessarv to secure or maintain
uniformitv 0f the court’s decisions: or
(2) the case involves a question of exceptional importance that must
be concisely stated.
(b) Content. The motion for en banc consideration shall explain with
particularitv th en banc consideration is necessarv.
(C) Motions for Initial En Banc Hearing. At anV point after the
appellant’s brief is filed but no later than fifteen davs after the filing of the appellee
brief‘ anv party mav file a motion for en banc consideration. The motion shall be
accompanied bV proof of service upon all other parties. Within ten davs after service
of the motion. anv partv maV file a response thereto. The filing shall be accompanied
bV proof of service upon all other parties. The court will rule upon the motion within
thirtv davs after the case is fullv briefed and mav rule upon it prior to that time. The
filing of the motion will not stay the time for briefs to be filed. When a motion for en
banc consideration is allowed, the case will be calendared as soon as practicable.
(d) Motions for En Banc Rehearing. A motion to rehear anv case en
banc maV be filed Within fifteen davs after the opinion of the court has been filed.
The motion shall be accompanied bv proof of service upon all other parties. Within
ten davs after service of the motion. anv party mav file a response thereto. The filing
shall be accompanied bV proof of service upon all other parties. Within thirtV davs
after the motion is filed. the court will either allow or denv the motion. The denial of
the motion will trigger the time for taking an appeal of right to the Supreme Court
pursuant to N.C.G.S. S 7A-30 and for filing a petition for discretionarv review
pursuant to Rule 15. If the motion is allowed. the clerk shall forthwith notifv the
parties that the motion has been granted. The case Will be reconsidered solelv upon
the record on appeal, the motion for en banc rehearing and anv responses thereto,
new briefs of the parties if requested bv the court. and oral argument if the court
decides to hear oral argument. Entry of the en banc opinion vacates the original
panel opinion.
(e) Stav 0f Mandate. When a motion for en banc rehearing is filed, the
movant may obtain a stay of the mandate from the court. The procedure is as
provided bV Rule 8 of these rules for stavs pending appeal.
(f) Rule 31.1 Motions to Be Heard First. If a partv files both a motion
pursuant to this rule for en banc rehearingr and a Rule 31 petition for rehearing, the
court will rule on the motion for en banc rehearing first. The time for rulingon the
Rule 31 petition for rehearing; shall commence to run from the date of entrv bV the
Court of Appeals of an order deriving the en banc motion.
This amendment to the N orth Carolina Rules of Appellate Procedure shall be
effective immediately.
This amendment shall be promulgated by publication in the North Carolina
Reports and posted on the Court’s web site.
Ordered by the Court in Conference, this the 22nd day of December, 2016.
/ (,2
gJ/g'yvg ) J/l
v
For the Court
WITNESS my hand and the seal of the Supreme Court of North Carolina, this
the 22nd day of December, 2016.
, . BRYAN BOYD
., f ‘ i . Clerk of the Supreme Court
No comments:
Post a Comment