Business as usual at the Supreme Court

By: - June 19, 2013 3:58 pm


In the glare of the national spotlight illuminating a hotly-contested, contentious and expensive judicial election and amidst the shifting of seats brought on by the resignation of one justice and the elevation of another, the North Carolina Supreme Court carried on its business in otherwise mundane fashion this past year.

For the year coming to an end on June 30, the court has handed down 54 opinions, 29 of which were per curiam — where the justices essentially adopt the majority or dissenting opinion from the Court of Appeals. That yielded just 25 written opinions, including 12 in which only 6 justices participated, as the newly-sworn Justice Cheri Beasley had to bow out of those cases in which she played some role while on the Court of Appeals.


Who wrote the most?  That depends to some degree on the justices’ decision in any given case and their respective places in the pecking order.

“It’s like the NBA draft,” said former Justice Robert Orr. “There’s a rotating order, and whoever has first pick can take anything on the table, then second, third and so on. Whoever has the last pick gets the one nobody else wants to write. Of course, if you’re going to dissent your hands are tied as to what you can do.”

That “draft” usually happens at the end of a week of oral arguments, Orr added, after the court has convened each day after argument to discuss the cases and reach tentative decisions.

“When I was there, the conference was one of the strongest components of the process,” he said.  “We really spent a lot of quality time trying to get the right decision.”

Each justice then works on his or her opinions and circulates them, occasionally changing the mind of another justice.

This year, Justice Robert Edmunds was the most prolific, writing six majority opinions and two dissents, followed by Justice Barbara Jackson, with six majority opinions.

Justice Robin Hudson wrote most often in the dissent, writing four such opinions, and dissenting the most overall, in five of the 25 cases.  Justice Patricia Timmons-Goodson and Justice Edmunds followed, each with two written dissents.

And politics aside – Mark Martin, Edmunds, Paul Newby and Barbara Jackson are Republicans, and Sarah Parker, Hudson, and Patricia Timmons-Goodson (and her successor Beasley), Democrats – Justice Hudson found some interesting company in the dissenting spot. Twice she joined with Edmunds, not usually her traveling partner – most recently in Applewood Properties v. New South Properties, a case concerning standing to sue under a state pollution control law. The majority there held that a person could not sue unless a governmental agency had issue a notice of violation first; Edmunds and Hudson disagreed.

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In the other case, White v. Trew, the majority held that in order for a libel complaint to pass muster under pleading requirements, it had to allege whether a named defendant  was being sued in his individual or his official capacity (here, as a university department head).  Edmunds and Hudson, however, said that the Court had never before imposed such a requirement and that under liberal notice pleading concepts, the plaintiff in that case should have been able to prove his case.

In both of those cases, Justice Jackson wrote the majority opinion. But in another decision, State v. Ellison, Jackson joined in an opinion by Hudson in which both concurred only in the result of the decision.  In Ellison, the majority applied a drug trafficking statute – intended, Hudson wrote, for large-scale dealers – to small dealers of prescription drugs. “Small-scale dealers and end users have been swept in by the broad language of the statute. I am confident that this is not what the General Assembly intended in enacting this statute,” she wrote.


Overall, the court ruled unanimously in all but nine of the 25 cases, and in only two were the justices sharply divided.

In State v. Heien, a 4-3 decision by Justice Paul Newby, the court considered whether a traffic stop for a broken headlight – mistakenly believed by an officer to be a valid reason for such a stop – could justify a subsequent search and arrest for cocaine possession.  The majority said yes, but Hudson – joined by Chief Justice Parker and Justice Timmons-Goodson – disagreed.  “The majority’s opinion here significantly, and in my view unnecessarily, alters our Fourth Amendment jurisprudence by introducing subjectivity and vagueness into our Fourth Amendment analysis and effectively overruling this Court’s prior precedent,” Hudson wrote.

And in Matter of Foreclosure: Johnson — a case concerning a condominium foreclosure based upon a homeowners’ association assessment — Justices Mark Martin, Newby and Jackson found themselves in the rare dissent spot (all three almost always in the majority otherwise).  The 4-3 majority, led by Justice Timmons-Goodson and with Justice Edmunds as the swing vote, ruled that an improperly administered assessment was not a valid debt supporting a foreclosure claim.


With this year’s numbers – 54 cases, 25 written opinions – the court continues a decline that has been the subject of some scrutiny in recent years.

They pale in comparison to those of the U.S. Supreme Court, which has so far handed down 54 opinions, with another 15 or so to go before the term ends on June 30.

They’re lower than the court’s own 59 cases and 35 opinions handed down in the year ending June 30, 2012.

And they’re drastically down from those a decade or two ago. In 2000, the court decided 102 cases.  Aside from some intermittent blips, the numbers have since dropped steadily.

“My first week on the court, in January 1995, we had 27 cases on the calendar for oral argument — for that week alone,” said former Justice Orr. “We probably heard 225 or more cases per term.”

There are some objective reasons for that decline, Orr said, including the drop in the number of dissenting opinions in the Court of Appeals – which otherwise served as a basis for an appeal to the Supreme Court.

But Orr has been vocal in his criticism of the Court’s unwillingness to accept cases that involve “substantial constitutional questions” and its failure to provide any insight as exactly what constitutes such a question.  They’re just not taking the cases, he said.

The Court of Appeals, on the other hand, is getting swamped.  As noted in Orr’s 2011 Campbell Law Review article, the Court of Appeals in 2009 handed down close to 1400 opinions – with 15 judges, almost 100 per judge – compared to the Supreme Court’s 70 opinions that year.

That wasn’t the intent of the Courts Commission when it helped create the Court of Appeals in the late 1960s.

“Before that, a justice on the Supreme Court was writing on average 50 opinions a year,” Orr said.  The intent was to alleviate some of that work and create a balance. But now that workload has been largely pushed on to the Court of Appeals.

“In its report, the Courts Commission said that if the workload on the new Court of Appeals exceeded the workload on the Supreme Court, the Supreme Court had a responsibility to reach down and take some cases and bypass the Court of Appeals,” Orr said.

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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.