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MEET THE OFFICE OF APPELLATE
DIVISION STAFF
Jaye Bingham-Hinch became Director of the Office of
Appellate Division Staff for the North Carolina Appellate
Courts in 2018. She received her undergraduate degree from
Duke University and her law degree from the University of
North Carolina School of Law. Prior to coming to the Courts,
Jaye practiced appellate law and civil litigation for twenty
years at Cranfill, Sumner & Hartzog and Tuggle Duggins. She
served as Section Leader of the Appellate Section at Cranfill for
thirteen years and is a North Carolina Board Certified
Specialist in Appellate Law. Jaye has also served as an
Adjunct Professor of legal research, writing, and appellate
advocacy at both the University of North Carolina School of
Law and Campbell University School of Law. She is a member of the Appellate Rules
Committee of the North Carolina Bar Association, the Appellate Practice Council, and the
Appellate Specialist Committee for the State Bar, and she began her career at the Court of
Appeals as a law clerk to Chief Judge John C. Martin. Jaye is most proud of being a mom
to Isabella and James.
David Lagos is a Virginia native and went to UNC-CH for
undergrad and law school. Before joining Staff in 1999, he
worked as a staff attorney at the 4th Circuit U.S. Court of
Appeals and as an editor for a legal publisher in Durham. He
has been on Staff for 15 years total but spent 5 years from 2008-
13 working on criminal and juvenile justice issues for the N.C.
Sentencing and Policy Advisory Commission. He became
Assistant Director of the Office of Appellate Division Staff in
2016.
Bryan A. Meer has been a Staff Attorney with the Office of
Appellate Division Staff for twenty years. He graduated from
UNC School of Law School in 1995. He clerked for Chief Judges
Sidney S. Eagles, Jr. and John C. Martin of the N.C. Court of
Appeals. Bryan graduated from Penn State in 1992 with Honors
in Comparative Literature. While at Penn State, he was the
recipient of the 1991 Younger Scholar Award from the National
Endowment for the Humanities. He is co-author of
“Constructing a Medieval Genealogy: Roland the Father of
Tristan in Castleford’s Chronicle,” which was published in
Modern Language Notes by Johns Hopkins University in 2000.
Bryan lives in Clayton with his wife Jodie and daughter Kaylee.
He is originally from Kings Park, New York.
Mike Rodgers began working as a Staff Attorney in the Office
of Appellate Division Staff in 2015. After graduating from UNC
School of Law in 2008, Mike spent a brief time in private
practice before clerking for the Honorable Ann Marie Calabria
at the North Carolina Court of Appeals from 2009-2015. Mike
has coached youth baseball since 2014.
Lauren Tierney has been a Staff Attorney with the Office of
Appellate Division Staff for four years. She received her
undergraduate degree from Appalachian State University and
her law degree from UNC Chapel Hill School of Law. Before
joining Appellate Division Staff, Lauren served as a law clerk for
Judges Robert Hunter, Jr. and Richard Dietz. Outside of work,
Lauren competes in obstacle course races and is a member of the
2019 Spartan Pro Team.
Caroline Koo Lindsey is a Staff Attorney with the Office
of Appellate Division Staff. She received both her
undergraduate and law degrees from UNC Chapel Hill. She
has been a Staff Attorney for a year and a half and
previously clerked for four Court of Appeals Judges: Justice
Cheri Beasley, Judge Wanda Bryant, Judge Douglas
McCullough, and Judge John Arrowood. When she is not at
work, she is either playing with her 12-year-old Corgi or her
7-month-old baby!
Ross Wilfley has been a Staff Attorney with the Office of
Appellate Division Staff since April of this year. He received
his undergraduate degree from the University of North
Carolina and his law degree from the University of Miami
School of Law. Prior to coming to Staff, Ross was a Research
Assistant at the Court of Appeals for Judges Bryant,
Arrowood, and McCullough.
Hannah Murphy joined the Office of Appellate Division Staff
in July 2019, following a clerkship with Judge John M.
Tyson. She is a 2017 graduate of Campbell Law School. Prior
to law school, she taught 10th and 12th grade English for five
years. She received her undergraduate degree from East
Carolina University, where she acquired carpentry and painting
skills during her short time as a theatre major.
Julie LaVelle is a Legal Assistant with the Office of Appellate
Division Staff. Previously, she was the Executive Assistant to
the Honorable Richard A. Elmore for sixteen years, and the
Honorable Allegra K. Collins of the North Carolina Court of
Appeals. Julie lives in Chapel Hill with her husband, and
daughters Callie and Katie.
Erynn Hatch is a Legal Assistant with the Office of
Appellate Division Staff. She received her undergraduate
degree in social work from UNC-Charlotte and her law degree
from North Carolina Central University School of Law.
Previously, she worked in Burlington at the Family Justice
Center, working with law enforcement and domestic violence
survivors. Erynn currently lives in Durham, where she grew
up, with her not-so-small anymore puppy, Poppy.
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THE ROLE OF THE OFFICE OF APPELLATE DIVISION STAFF:
INTRODUCTION TO THE WORLD OF MOTIONS, PETITIONS, FAST
TRACKS, 3.1 CASES, AND CALENDARING
I. The Office of Appellate Division Staff
A. The Office of Appellate Division Staff (“Staff”) consists of a Director, an
Assistant Director, seven Staff Attorneys, and two Legal Assistants. The
attorneys in the Office of Appellate Division Staff have a considerable
amount of appellate knowledge and experience and are glad to assist the
Research Assistants at any time.
1. Current personnel – Jaye E. Bingham-Hinch, Director; David Lagos,
Assistant Director; Bryan Meer, Mike Rodgers, Lauren Tierney,
Caroline Koo Lindsey, Ross Wilfley, and Hannah Murphy, Staff
Attorneys; Julie LaVelle and Erynn Hatch, Legal Assistants.
B. Duties -- Staff serves the Courts as a whole, rather than one individual
judge or justice. Staff assists the Courts with the disposition of motions,
petitions, Rule 3.1 cases, and fast track cases. Staff also prepares the
Court of Appeals calendars, where cases are assigned to a three judge
panel to be heard on a certain date, and recommends whether each case
should be orally argued or decided based solely on the written materials
filed with the Court. Additionally, Staff organizes the Courts’ annual
orientation program for incoming research assistants, helps with
administration of the Courts’ Legal Standards database
(http://appellate.nccourts.org/NC Legal Standards.pdf), summarizes the
civil case opinions filed by our Supreme Court, and serves as a general
resource available for the justices, judges, and court personnel.
II. Motions/En Banc Motions
A. General treatment -- Court of Appeals Motions (except motions for
temporary stay and motions for en banc review) are handled by the
Assistant Clerk, Shelley Edwards, who reviews and summarizes them for
the Court and prepares the orders needed to effectuate the Court’s
rulings. When Shelley is out, one of the attorneys in Staff handles the
motions. Most motions are ruled upon by the Chief Judge or her designee,
although some require the signatures of three judges.
B. Referred motions -- Some motions will be referred by the Chief Judge to
the panel assigned to hear the appeal. The panel to whom the motion is
referred will issue a final ruling on the motion by the date the panel’s
opinion in the case is filed. A referred motion can be ruled upon within
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the panel’s opinion or by a separate order.
C. En Banc motions -- On 16 December 2016, our legislature enacted
legislation authorizing the Court of Appeals to “sit en banc to hear or
rehear any cause upon a vote of the majority of the judges.” N.C. Gen.
Stat. § 7A-16. In response, the Supreme Court adopted Rule 31.1 of the
N.C. Rules of Appellate Procedure on 22 December 2016.
Rule 31.1 authorizes the filing of a motion for initial en banc hearing
at any point after the appellant’s brief is filed but no later than 15 days
after the filing of the appellee brief. The motion is to be held for a
response, and the Court must rule on the motion within 30 days after the
case is fully briefed.
The rule requires a motion for an en banc rehearing to be filed within
15 days after the opinion has been filed, to be held for a response, and for
the Court to rule on the motion within 30 days of the filing of the motion.
The Clerk’s Office and Staff work together to assist the Court of
Appeals with timely processing of the en banc motions. When an en banc
motion is filed, the Clerk’s Office notifies the whole Court (judges and
EAs), delivers the motion to the panel who authored the opinion, and gives
a copy to Staff. The motion is held for a response.
The judges are then given a deadline by which to call for a vote.
Voting is done electronically through Edock. If no judge calls for a vote,
the motion is deemed denied. If any judge does call for a vote, the judges
are given a second time frame within which to vote to allow or deny the
motion. If three judges call for a vote, Staff will prepare a summary of the
motion with analysis and a recommended ruling. The summary is
emailed to all the judges and EAs and placed in echamber in the En Banc
folder.
If the motion is allowed, the Court will decide whether additional
briefs shall be filed and will set a date for the oral arguments before the
full Court. If rehearing en banc is allowed, the whole appeal is back before
the Court for decision de novo, and not simply the issue or issues the
movant identified as needing rehearing.
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III. Petitions
A. Generally -- A large number of petitions are also filed with the Appellate
Courts. At the Court of Appeals, all petitions are forwarded by the Clerk’s
Office to Staff, and a Staff Attorney prepares a summary of the petition,
recommends a disposition, and drafts any order that is needed. The
petition and summary are then forwarded to the petition panel for a
ruling. The petition panel is a three judge panel designated by the Chief
Judge.
1. All of the judges take turns serving on the petition panel.
2. Each panel serves for one month.
B. Petitions for writ of certiorari -- Per N.C. R. App. P. 21 (a)(1), a petition
for writ of certiorari is used to seek review of a judgment or order of the
trial court when the right to pursue an appeal has been lost by failure to
take timely action, when no right of appeal lies from an interlocutory
order, or to seek review of the trial court’s ruling on a post-conviction
motion for appropriate relief.
This writ may also be issued “by the Supreme Court . . . to permit
review of the decisions and orders of the Court of Appeals when the right
to prosecute an appeal of right or to petition for discretionary review has
been lost by failure to take timely action, or for review of orders of the
Court of Appeals when no right of appeal exists.” N.C. R. App. P. 21 (a)(2).
N.C. R. App. P. 21 (c) requires that a petition for writ of certiorari be
filed “without unreasonable delay,” be verified, and include “certified
copies of the judgment, order, or opinion or parts of the record which may
be essential to an understanding of the matters set forth in the petition.”
These petitions will be decided upon the petition, the response to the
petition from the opposing party, and any supporting papers, without
briefing or argument unless the Appellate Court orders otherwise. N.C.
R. App. P. 21 (d).
For example, a party entitled to appeal may give timely notice of
appeal but thereafter fail to timely perfect the appeal (i.e., fail to timely
file the record on appeal with the Appellate Court), losing the right to
pursue the appeal. The party may file a petition for writ of certiorari with
the relevant Appellate Court requesting that the Court issue the writ to
review the judgment from which the appeal was taken.
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C. Petitions for writ of mandamus and prohibition -- N.C. R. App. P. 22. “The
writ of mandamus is an order from a court of competent jurisdiction to a
board, corporation, inferior court, officer or person commanding the
performance of a specified official duty imposed by law.” Sutton v. Figgatt,
280 N.C. 89, 93, 185 S.E.2d 97, 99 (1971). It is a remedy for inaction of an
official who “has neglected or refused to perform a personal duty which
the plaintiff has a clear legal right to have him perform.” Id. “Mandamus
is the proper remedy when the trial court fails to hold a hearing or enter
an order as required by statute.” In re T.H.T., 362 N.C. 446, 454, 665
S.E.2d 54, 59 (2008).
“The writ of prohibition is the converse of mandamus. . . . It . . . is
the remedy afforded by the common law against the encroachment of
jurisdiction by inferior courts, and to keep them within the limits
prescribed by law.” State v. Whitaker, 114 N.C. 818, 819-20, 19 S.E. 376,
376 (1894) (citation omitted).
N.C. R. App. P. 22 (b) requires that a petition for writ of mandamus
or prohibition be verified and include “proof of service on the respondent
judge, judges, commissioner, or commissioners” as well as “certified copies
of any order or opinion or parts of the record that may be essential to an
understanding of the matters set forth in the petition.”
These petitions will be decided upon the petition, the response to the
petition from the opposing party, and any supporting papers, without
briefing or argument unless the Appellate Court orders otherwise. N.C.
R. App. P. 22 (c).
An example would be where a party has filed a motion that the trial
court has not ruled upon after several months. The party will often file a
petition for writ of mandamus with this Court to compel the trial court to
rule on the motion or enter an order.
D. Petitions for writ of supersedeas and motions for temporary stay -- N.C.
R. App. P. 23. A petition for writ of supersedeas (“PWS”) is utilized “to
stay the execution or enforcement of any judgment, order, or other
determination of a trial tribunal which is not automatically stayed by the
taking of appeal when an appeal has been taken, or a petition for
mandamus, prohibition, or certiorari has been filed to obtain review of the
judgment, order, or other determination[.]” N.C. R. App. P. 23 (a)(1).
The stay must first have been sought and denied at the trial court,
or “extraordinary circumstances make it impracticable to obtain a stay”
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at the trial court. N.C. R. App. P. 23 (a)(1). A statement must be included
stating such, and the petition must be verified. N.C. R. App. P. 23 (c).
A PWS may also be filed with the Supreme Court “to stay the
execution or enforcement of a judgment, order, or other determination
mandated by the Court of Appeals when a notice of appeal of right or a
petition for discretionary review has been or will be timely filed, or a
petition for review by certiorari, mandamus, or prohibition has been filed
to obtain review of the decision of the Court of Appeals. No prior motion
for a stay order need be made to the Court of Appeals.” N.C. R. App. P.
23 (b).
These petitions will be decided upon the petition, the response to the
petition from the opposing party, and any supporting papers, without
briefing or argument unless the Appellate Court orders otherwise. N.C.
R. App. P. 23 (d).
A PWS may also be accompanied by a motion for temporary stay to
stay the relevant order or judgment pending decision on the PWS. Orders
on temporary stay motions may be issued by the Appellate Courts ex
parte. N.C. R. App. P. 23 (e).
E. Petitions for writ of habeas corpus -- Chapter 17 of our General Statutes
addresses habeas corpus relief. N.C. Gen. Stat. § 17-1 provides, “Every
person restrained of his liberty is entitled to a remedy to inquire into the
lawfulness thereof, and to remove the same, if unlawful; and such remedy
ought not to be denied or delayed.” The purpose of a writ of habeas corpus
is “to inquire into the lawfulness of [the petitioner’s] restraint.” Hoffman
v. Edwards, 48 N.C. App. 559, 564, 269 S.E.2d 311, 313 (1980). Habeas
relief is appropriate where (1) “the record discloses that the court which
imprisoned [the inmate] did not have jurisdiction of the offense or of the
person of defendant, or that the judgment was not authorized by law,” In
re Burton, 257 N.C. 534, 541, 126 S.E.2d 581, 586 (1962), or (2) “ ‘though
the original imprisonment was lawful, yet by some act, omission or event,
which has taken place afterwards, the [inmate] has become entitled to be
discharged.’ ” In re Imprisonment of Stevens, 28 N.C. App. 471, 474, 221
S.E.2d 839, 840 (1976) (quoting N.C.G.S. § 17-33(2)). Moreover, “the
petitioner must have properly pursued all legal and administrative
remedies before a writ of habeas corpus may be employed.” Hoffman, 48
N.C. App. at 564, 269 S.E.2d at 313 (citation and internal quotation marks
omitted).
One example of this would be where the charging instrument, the
indictment, did not confer jurisdiction on the trial court to enter judgment
because it did not sufficiently allege the elements of the crime. In this
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instance, the defendant could seek discharge from confinement through a
petition for writ of habeas corpus.
F. Petitions for rehearing -- Petitions for rehearing are governed by
Appellate Rule 31. At the Court of Appeals, they are not summarized by
Staff but instead are forwarded to the panel of judges who issued the
opinion that the petitioner seeks to have reheard. Rule 31(g) specifies
that the Appellate Courts will not consider a petition for rehearing in a
criminal case.
IV. Fast Track (“FT”) Calendar
A. All appeals at the Court of Appeals undergo fast track screening -- Before
an appeal is calendared, it is screened by Staff to determine whether it is
appropriate for placement on the Court’s expedited calendar, known as
the fast track (“FT”) calendar.
B. What cases are appropriate for the fast track -- Cases put on the FT
calendar generally are the easier ones to resolve, ones that do not involve
unsettled principles of law or questions of first impression but instead
involve principles of law and factual situations that are more straight-
forward. Other appeals appropriate for the FT calendar are those taken
prematurely or those suffering from jurisdictional defects. Cases placed
on the FT calendar are decided without the benefit of oral argument, and
the opinions in the cases are usually unpublished.
C. Meaning and purpose of fast track -- Placement on the FT calendar does
not mean the case is less important than others or that it is less deserving
of close scrutiny. It simply means the Court may be able to handle it more
expeditiously.
D. How the fast track review process works -- The Director of Appellate
Division Staff, Jaye Bingham-Hinch, screens all cases to determine their
appropriateness for the fast track. Those cases identified as possibly
appropriate for the fast track are distributed among the attorneys on Staff
for further evaluation and research. If the Staff Attorney reviewing the
case agrees the case may be appropriate for the fast track, he or she
prepares a proposed opinion for the case. The proposed opinion, as well
as the record, briefs, and other accompanying documents are sent to the
panel of three judges designated by the Chief Judge as the FT panel.
That FT panel then makes the final decision as to whether the case
is placed on the FT calendar. If the panel decides the case is not
appropriate for the FT calendar, it rejects the case and notifies Staff so
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that the case can be placed on one of the Court’s regular calendars. Cases
accepted for placement on the FT calendar are calendared for a date
approximately 45 days after the batch of cases is sent to the panel.
The FT panel has 30 days in which to decide whether a case is
appropriate for the FT calendar – meaning that if the panel wishes to
reject a case, it does so within that 30 day time frame and before the
calendar is sent to the parties. The calendar will be sent to the parties
approximately 30 days after the batch of cases is sent to the FT panel.
E. FT panel -- All of the judges take turns serving on the FT panel. The
panel is designated by the Chief Judge and considers 30 cases before a
new panel is appointed. Staff forwards the cases recommended for FT
treatment to the FT panel in batches of 5.
F. FT is a case management tool -- The FT calendar is simply a case
management tool, a mechanism to reduce the number of cases placed on
the regular calendars and the number of opinions to be drafted in
chambers. All cases before this Court are considered by a panel of three
judges and resolved by written opinion (unless dismissed or withdrawn by
order) and are given the same careful consideration as any other appeal.
V. Rule 3.1 cases
A. What are 3.1 cases? 3.1 cases are cases governed by Rule 3.1 of the N.C.
Rules of Appellate Procedure. These are any appeals arising under
Subchapter I of Chapter 7B of the General Statutes (the Juvenile Code),
which governs juvenile abuse, neglect, and dependency proceedings
including proceedings for termination of parental rights.
B. Purpose -- The purpose of Appellate Rule 3.1 is to expedite resolution of
appeals taken in juvenile cases so that the children affected can achieve
some finality and permanence in their lives as soon as possible, whether
that means reunification with a parent or moving towards adoption.
C. How are 3.1 cases handled differently? Under Rule 3.1(b) and N.C. Gen.
Stat. § 7B-1001(c), both the parent and counsel (if any) must sign the
notice of appeal. Rule 3.1(c) & (d) prescribe an accelerated schedule for
perfecting the appeal, beginning with the preparation of the transcript
and continuing through settlement of the record. Extensions of time are
disfavored per Rule 3.1(g).
For 3.1 cases heard before the Court of Appeals, once an appellee
brief in a 3.1 case is filed, a copy is given to Staff. Staff then screens the
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case and prepares a proposed opinion and possibly an accompanying
memo to forward to the panel later assigned the appeal. Once Staff has
six 3.1 cases ready to be calendared, Staff sends a memo to Chief Judge
McGee who assigns the six cases to a panel designated to serve as the 3.1
panel. Each 3.1 panel receives two groups of six cases (for a total of 12
cases), and then a new panel is assigned.
When Staff sends a memo to the Chief Judge informing her of six 3.1
cases ready to be calendared, she assigns the panel to hear the cases, and
a calendar date is set for the cases, which is generally about three weeks
after the cases are forwarded to the panel. Court policy is that the
opinions in these cases are filed within 30 days of the calendar date.
If the panel decides to order oral argument for a 3.1 case, they
communicate with the Clerk’s Office to set a date and time for the
argument.
D. 3.1 cases sometimes placed on a regular calendar -- Sometimes 3.1 cases
are placed on a regular court calendar at the Court of Appeals, at the Chief
Judge’s direction. When that occurs, the case usually does not come with
a proposed opinion prepared by Staff.
E. Currently (effective 1 January 2019) appeal is to the North Carolina
Supreme Court from an order that terminates parental rights (and the
related order eliminating reunification from the permanent plan) or an
order that denies a motion or petition to terminate parental rights. N.C.
Gen. Stat. § 7B-1001(a1). Once all the briefs are filed in 3.1 case, the case
materials are provided electronically to Staff, and Staff prepares a
proposed opinion and possibly an accompanying memo to forward to the
Supreme Court for consideration.
VI. Regular Calendars
Staff, working closely with the Chief Judge and the Clerk’s Office, assists
the Court of Appeals with preparation of the regular court calendars. Once the
Chief Judge sets the panels for a week of court, Staff prepares a proposed
calendar containing recommendations as to which cases appear to warrant oral
argument and distributes the calendar to the judges’ chambers via email. The
Clerk’s Office then distributes the records, briefs, and other materials
pertinent to the appeals to the judges’ chambers. The judges are generally
given 10 days to review the cases and decide which cases are to be orally
argued. The judges inform Staff of any changes to the proposed calendar
regarding which cases are to be orally argued. Staff incorporates those changes
and delivers the calendar to the Clerk’s Office where it is put into final form
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and sent to the parties.
Originally Prepared by: Leslie H. Davis, Prior Director
Office of Staff Counsel, August 2017
Updated by: David Lagos, August 2018
Jaye Bingham-Hinch, August 2019 & 2020
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