MEET THE OFFICE OF APPELLATE DIVISION STAFF...MEET THE OFFICE OF APPELLATE DIVISION STAFF Jaye Bingham-Hinch became Director of the Office of Appellate Division Staff for the North

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