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Cheesed Berger puts beef on the table

Festivus, and its associated Airing of Grievances, isn’t until Dec. 23 this year, but some judges on the North Carolina Court of Appeals have got a lot of problems with people, and now you’re going to hear about it. Two weeks after one panel put a lower court judge on full blast, on Nov. 20 Judge Phil Berger Jr. penned an opinion bluntly criticizing his colleagues for having thus far declined to exercise their new power to hear cases sitting en banc.

The spark that ignited his thunder was the court’s ruling in Routten v. Routten, in which a majority found that a judge had denied a mother’s parental visitation rights without making the required findings of fact. Judge Lucy Inman dissented from the ruling, arguing that the majority had based its decision on a prior Court of Appeals decision that the court later disavowed because of its conflict with controlling Supreme Court precedent.

In his concurrence, Berger complained that the court has increasingly had to deal with problems arising from conflicting decisions handed down by different appeals court panels, even though one panel isn’t supposed to be able to overrule an earlier one. He offered some possible solutions, one of which was for the court to start hearing cases en banc, a power granted to it via a law passed in 2016 in the dying hours of Gov. Pat McCrory’s administration.

“Unfortunately, we have yet to sit en banc. To date, there have been 61 petitions filed requesting this Court to hear cases en banc, and we have declined to hear every single one,” Berger wrote.

“Perhaps some of my fellow judges on this Court are skeptical of whether the Supreme Court wants us to resolve our own conflicts. Some may be convinced that this resolution is not ours, but the business of our higher court. Others may have different motives. Whatever the reasons we have declined to sit en banc may be, legitimate or otherwise, encouragement and accountability from the appellate bar would be beneficial.”

Sidebar can’t say what those motives might be, but the court already disposes of roughly 1,500 appeals and 4,500 petitions and motions a year. What’s more, the same legislative leaders who passed the en banc law also passed a law that will cut the court’s roster from 15 judges to 12. So that maybe just maybe could relate to its reluctance to start hearing cases that would monopolize all of its judges.

Berger also noted that the legal issues the panels are scrumming over are often minor, and “at a high court that hears only seventy or eighty cases on discretionary review each year, these simply won’t make the cut.”

Lawyers Weekly has, of course, written frequently about the relatively low volume of decisions coming from the Supreme Court—so perhaps there’s yet another potential route out of this quandary.

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