What impact could HB 239 have on the North Carolina Court of Appeals?


A bill recently enacted by the North Carolina General Assembly (and vetoed by Governor Cooper), HB 239, seeks to decrease the number of judges at the North Carolina Court of Appeals from 15 to 12.  The bill also seeks to shift appellate jurisdiction over juvenile-3.1 cases from the Court of Appeals to the North Carolina Supreme Court. This post gives an overview of the COA judges’ workload in 2016 and projects how that workload might change if the General Assembly enacts HB 239 over the Governor’s veto.

HB 239 will shrink the COA by abolishing the next three judgeships that become vacant due to “death, resignation, retirement, impeachment, or removal.”  Barring any unforeseen circumstances, the next three judges that will reach mandatory retirement are:
  • Judge McCullough in May 2017,
  • Judge Hunter, Jr. in March 2019, and
  • Judge Calabria in October 2019 (if Judge Calabria wins reelection in 2018).

In 2016, each judge on the COA authored an average of 91 opinions.  The median was also 91.  The average and median both decrease to 78 if juvenile-3.1 cases are excluded from the number of authored opinions.

(During 2016, Judge Geer retired and Judge Enochs took her place for the balance of the year.  The above figures treat these two partial-year judges as one full-year judge.)

The following table shows:
  • How many total opinions each COA judge authored in 2016,
  • How many juvenile-3.1 opinions each judge authored in 2016, and
  • The difference between the above figures.  This difference estimates how many opinions each judge would have authored if she did not decide any juvenile cases in 2016.

Judge
Total Opinions
Juvenile-3.1 Opinions
Difference
1
77
10
67
2
79
13
66
3
85
9
76
4
85
11
74
5
90
10
80
6
90
15
75
7
90
15
75
8
91
10
81
9
92
14
78
10
93
14
79
11
94
15
79
12
96
18
78
13
99
14
85
14
101
11
90
15
104
12
92
Total
1366[1]
191
1175


If I assume that the flow of cases into the COA will remain constant, except for the diversion of juvenile-3.1 cases, I can roughly forecast how HB 239 might affect the judges’ workload.  When there are 14 judges, each judge will need to author approximately 84 opinions.  When there are 13 judges, each judge will need to author approximately 90 opinions.  Finally, when there are 12 judges, each judge will need to author approximately 98 opinions.  

Part of the reason why the net workload change is so modest, of course, is the diversion of juvenile-3.1 cases to the Supreme Court.  That point highlights a potential fallacy of comparing caseload averages:  discussing averages assumes that all cases, including juvenile-3.1 cases, entail a similar level of work for the court. 

In my experience clerking at the COA, this assumption is incorrect. A significant number of juvenile-3.1 cases present the same legal issue: termination of parental rights. A judge can often rely on the same legal research to resolve multiple juvenile cases. In contrast, non-juvenile cases often require greater incremental research per case. 

If enacted, HB 239 will increase the COA judges’ workload because the remaining 12 judges will have to work harder to decide more cases.



[1] There is one per curiam opinion from last year that is missing from this total. 

How long did it take the COA to issue opinions in 2016?

In 2016, the Court of Appeals issued 1,367 written opinions.  Of those written opinions:
·      548 were civil;
·      610 were criminal;
·      181 were Juvenile – 3.1; and
·      18 were Juvenile – Criminal.
The Court issued opinions an average of 88 days after the case was argued.  That is 11 days slower than the average amount of time it took the COA to issue opinions in 2015.  The median amount of time also increased: in 2016 it was 71 days while in 2015 it was 62 days.  That is a 9-day increase. The fastest opinion was issued 8 days after argument while the slowest opinion was issued 518 days after argument.

The average number of days it took the COA to issue opinions in 2016 for each category of case breaks down as follows:


Published
Unpublished
All Opinions
Juvenile-Criminal
49
110
107
Juvenile-3.1
26
29
29
Criminal
113
75
86
Civil
121
103
112
All Areas of Law
111
77
88


The below table shows how many days faster or slower the COA was in 2016 compared to 2015 by category of case.


Published
Unpublished
All Opinions
Juvenile-Criminal
-12
+11
+18
Juvenile-3.1
-13
0
-2
Criminal
+22
+11
+15
Civil
+16
+7
+12
All Areas of Law
+18
+8
+11


As you can see, the COA generally slowed down in 2016.  Thus, if the legislature succeeds in its effort to reduce the number of judges at the COA, it could take even longer for the COA to issue opinions.