Are civil cases granted oral argument more frequently than criminal cases?

When I shared the data I collected on the percent of cases receiving oral argument at the Court of Appeals of North Carolina, some lawyers suggested that I look at the percent of cases receiving oral argument by type of case.  They believed that civil cases were granted oral argument more frequently than criminal cases.  They were correct!  

I categorized the appeals that appeared on the public calendar (the calendar posted on the Court of Appeals website) in 2015 and 2016 as civil or criminal.  Then I calculated what percentage of civil cases were granted oral argument and what percentage of criminal cases were granted oral argument.   

As the charts and tables show, in both 2015 and 2016 only 8% of criminal cases were granted oral argument.  By comparison, 18% of civil cases were granted oral argument in 2015 and 14% of civil cases were granted oral argument in 2016. The hunch seems to be correct: a civil case is more likely to be granted oral argument than a criminal case.

2015 Criminal v. Civil Oral Argument

% 30(f)’d
% Oral Argument
Criminal
92%
8%
Civil
82%
18%
Total
86%
14%


2016 Criminal v. Civil Oral Argument

% 30(f)’d
% Oral Argument
Criminal
92%
8%
Civil
86%
14%
Total
88%
12%

North Carolina Bar Association Appellate Practice CLE

Earlier this month, the Appellate Practice Section held its annual CLE. I was honored to speak at the event and share some of the data I have collected. I think the attendees of the event found the information I shared interesting. Here is a link to the paper that accompanied my presentation. It contains some information that I have previously discussed on this blog and some information that I have not. Enjoy!

2016 Supreme Court of North Carolina Dispositions

When a case is appealed to the Supreme Court of North Carolina, the court can enter several different dispositions.  The court may affirm, modify and affirm, reverse, or vacate the lower court’s ruling. The court may also choose not to consider the merits of the appeal by dismissing the appeal or determining that review was improvidently granted.  Finally, the court may discipline judges under Article 30 of Chapter 7A of the North Carolina General Statutes by issuing a public reprimand.

I placed these possible dispositions into six different categories: (1) affirmed – meaning the lower court’s ruling stands; (2) reversed – meaning the lower court’s ruling is no longer valid; (3) dismissed – meaning the court did not consider the merits of the appeal; (4) review improvidently granted – meaning that the court decided it incorrectly granted the petition for review; (5) mixed – meaning a combination of affirmed, reversed, dismissed, or review improvidently granted; (6) public reprimand – meaning the court admonished a judge’s conduct.

The court’s 2016 dispositions are shown in the pie chart below.



In 2016, 24 of the court’s 68 opinions were issued per curiam, meaning the opinion was issued by the court as a whole without identifying an author. The remaining 44 opinions identified an author.  This made me wonder if the dispositions for per curiam opinions vary from the dispositions in authored opinions.  It turns out they do.


For example, all appeals where the court determined that review was improvidently granted were issued per curiam.  In addition, a larger percentage of per curiam opinions affirm the lower court.  The pie charts below show dispositions for per curiam opinions and dispositions for authored opinions.



While appellants may not fare as well when the court issues per curiam opinions, they fair quite well overall, with 35% of opinions reversing the lower court and 13% of opinions resulting in a mixed disposition.   

Do dissents exist at the Supreme Court of North Carolina?

After last month's post on dissents at the Court of Appeals of North Carolina, I received a few questions about dissents at the Supreme Court of North Carolina.  Before addressing SCONC dissents, I think some context about the number of SCONC opinions is useful.


In 2016, the SCONC issued 68 written opinions: 44 (65%) identified an author and 24 (35%) were issued per curiam.  As a result, no single justice came close to authoring 24 opinions.  Justice Jackson authored eight opinions, which are the most by a justice and one-third of the number of per curiam opinions.  The below chart shows how many opinions each justice authored.


Of the authored opinions, nine garnered a dissent, meaning 20% of authored opinions were dissented from.  The below chart shows how many times a justice dissented and how many dissents a justice received.


As you can see, Justice Beasley dissented the most and Justice Edmunds received the most dissents.  It is also interesting that Justice Hudson was the only justice that did not receive a dissent and Justice Edmunds was the only justice that did not dissent at all.

The rate of dissenting opinions, however,  decreases to 15% when per curiam and authored opinions are considered together.  Interestingly, one per curiam opinion was the result of the court being divided 3-3, as shown in the below chart.  


While a majority of the SCONC’s opinions in 2016 were unanimous, dissents did occur with greater frequency than at the COA. (15% of SCONC opinions received a dissent while only 5% of COA opinions received a dissent in 2016.)

How many dissenting opinions did the North Carolina Court of Appeals issue in 2016?

As Matt Leerberg previously highlighted, it appears that judges on the North Carolina Court of Appeals are issuing more dissenting opinions.  In 2015, 1.9% of opinions received a dissent while in 2016, 4.8% did. Here is a closer look at the dissenting opinions issued in 2016. 

In 2016, twelve different judges issued a total of 65 dissenting opinions,[1] with three judges accounting for 66% of all dissents.


Judge
Number of Dissents
Dillon
19
Tyson
14
Hunter, Jr.
10
Bryant
5
Elmore
4
Enochs
3
McCullough
3
Stroud
3
Geer
1
Zachary
1
Stephens
1
Calabria
1




Sixteen different judges were dissented from, with Chief Judge McGee being dissented from most frequently.

Author of Majority
Dissents Received
McGee
12
Geer
9
Dillon
8
McCullough
5
Zachary
4
Stephens
4
Hunter, Jr
4
Enochs
4
Stroud
3
Calabria
3
Tyson
2
Inman
2
Dietz
2
Elmore
1
Davis
1
Bryant
1














Finally, most of the dissents related to civil appeals, and only eight were unpublished.


Here’s to hoping that the panel for your civil appeal includes McGee, Dillon, Tyson, or Hunter, Jr.


[1] I count dissenting opinions by COA number, so some of these dissents may be in related appeals that were not consolidated.


What was the North Carolina Court of Appeals' reversal rate in 2016?

In 2016, the North Carolina Court of Appeals issued a total of 1,367 opinions. It affirmed the trial court in 838 opinions, reversed the trial court in 264 opinions, affirmed in part and reversed in part (“mixed”) the trial court in 191 opinions, and dismissed 74 appeals. (I am using the terms affirmed, reversed, mixed, and dismissed as defined in this post.) The percentages break down as follows:


However, when I compare the COA's dispositions in published and unpublished opinions, the percentages look different.


Furthermore, the percentages look different when I compare dispositions by type of case. 



As you can see, it is more likely that the trial court will be reversed in a published opinion and a much larger percentage of civil cases are dismissed.


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.