In Cryan v. National Council of YMCAs of the U.S., the North Carolina Supreme Court gave a refresher on certiorari review and appeals from a dissent.
The plaintiff in Cryan sued the YMCA for decades-old abuse made actionable by North Carolina’s SAFE Child Act. The YMCA moved to dismiss and argued the act was unconstitutional. The trial court ruled that the YMCA mounted a facial challenge to the act, so it referred the motion to a three-judge panel as mandated by statute. The YMCA appealed that ruling to the North Carolina Court of Appeals. The plaintiff, in turn, moved to dismiss the interlocutory appeal. The YMCA then filed a petition for certiorari review under N.C. R. Civ. P. 21, which gives the appellate court discretion to grant certiorari review in “appropriate circumstances” when interlocutory review is otherwise unavailable.
In a 2-1 decision, the Court of Appeals granted certiorari review and heard the YMCA’s appeal. On the issue itself, the court ruled that the YMCA made an as-applied challenge, not a facial challenge, and it vacated the trial court’s transfer order. In dissent, Judge Jeff Carpenter opined that certiorari review should not have been granted. He expressed no opinion, however, on whether the YMCA raised a facial or as-applied constitutional challenge.
The plaintiff appealed from that dissent and asked the Supreme Court to reverse and hold that the YMCA, in fact, presented a facial constitutional challenge to the SAFE Child Act. The Supreme Court did not get that far though. Instead, it took the opportunity to reaffirm the rules surrounding certiorari review and appeals from a dissent.
At first, the Court pointed out that a writ of certiorari should only issue if the petitioner can show: (1) legal error by the lower court; and (2) extraordinary circumstances that justify immediate review. Whether these criteria are satisfied is reviewed for abuse of discretion. On this point, the Court held that the Court of Appeals acted within its discretion when it decided that the YMCA’s appeal satisfied the two prongs needed for certiorari review.
Even so, the Court declined to consider the plaintiff’s arguments that the YMCA’s constitutional challenge should be referred to a three-judge panel. By N.C. R. App P. 16(b), an appeal from a dissent is limited to the reasons given in the dissent. If a judge does not dissent on a particular point, there is no appeal of right. The dissenting judge in Cryan disagreed with the issuance of a writ of certiorari, but he expressed no opinion on the majority’s determination that the YMCA made an as-applied challenge. As a result, the Court dismissed the plaintiff’s arguments that the YMCA presented a facial constitutional challenge to the act.
Parties that petition for certiorari review would do well to follow the blueprint described in Cryan. Whether a case satisfies the criteria for certiorari review, of course, will depend on the issues and the circumstances involved. And if a dissenting judge does not spell out their disagreement on a certain point, there is no appeal of right on that issue. Instead, the aggrieved party should file a petition for discretionary review on those points omitted from the dissent. That petition can be filed along with an appeal of right.
If you have questions about North Carolina appellate procedure, please contact Steven Bader at (919) 863-8750 or firstname.lastname@example.org