Is the NC Supreme Court considering weakening the Court of Appeals? What we know.

A North Carolina Supreme Court justice recently outlined two potential changes that could strengthen the power of the state’s highest court just weeks after a partisan power shift.

The state Judicial Branch, so far, won’t answer questions about the changes or even confirm they are being considered.

Supreme Court Justice Anita Earls described the potential changes at the legislature’s North Carolina Courts Commission meeting on Jan. 27. Earls mentioned the changes in response to a question from Rep. Marcia Morey of Durham. Earls and Morey are both Democrats.

The changes, as described, appear to take away some power from the Court of Appeals by allowing the Supreme Court to decide which cases it hears and which Court of Appeals cases will set precedent for future legal arguments.

Two newly elected justices joined the Supreme Court in January, flipping the partisan makeup from a 4-3 Democratic majority to a 5-2 Republican one. Republicans swept the statewide judicial elections in 2022.

Since the meeting, The News & Observer called Judicial Branch spokesperson Graham Wilson, asking for confirmation and more information every weekday. The first four days, Wilson said he had no information. Wilson didn’t return a phone message left on Friday.

The News & Observer also reached out to Morey and Rep. Joe John, a Wake County Democrat, chair of the Courts Commission and a former judge on the Court of Appeals. Both said they hadn’t received any information about any pending changes.

Both expressed concern about the potential effects the changes could have.

What change may be coming?

One of the proposals that Earls outlined would end an avenue to appeal a case to the Supreme Court.

The Court of Appeals is the state’s intermediate appellate court in which three-judge panels review cases and decide on whether trial courts correctly applied the law or allowed a significant error.

Like the Supreme Court, the Court of Appeals has a Republican majority.

Currently, if a Court of Appeals judge dissents from a ruling made by a majority, the decision can be appealed to the Supreme Court. The other typical route to the Supreme Court is limited to cases that the higher court agrees to hear.

The Supreme Court is considering eliminating the appeal-upon-a-dissent option, Earls said. That would require legislation since the right to appeal is written into state law.

In addition, the court is proposing a change that would take away the Court of Appeals’ right to decide whether its decisions will set a legal precedent, giving that power to the Supreme Court, Earls said.

That change could come through an adjustment to the rules of appellate procedure, Earls said. The rules are approved by members of the Supreme Court.

Whenever a Court of Appeals panel issues a decision, it decides whether the decision will be published or unpublished. If the ruling is “published,” it sets a legal precedent that will guide judges’ decisions in future cases.

However, if the panel determines that the decision involves no new legal principles and has no precedential value, it can direct the decision to be “unpublished.”

The system of published and unpublished opinions was established to help deal with growing volumes of decisions and the confusion it created sifting through all the cases, according to the UNC School of Government.

As opinions and research have moved from books to online, unpublished opinions are available to be read and can still be a valuable tool in understanding a judge’s reasoning.

However, under the 2022 edition of the rules, citation of unpublished opinions is disfavored except as a last resort.