What is Discretionary Review?

June 13, 2018 | Sam Morris

Discretionary Review

As noted in our prior post, the North Carolina Court of Appeals ordinarily reviews appeals from our state trial courts.  After the Court of Appeals has rendered its decision, a party may seek review before the North Carolina Supreme Court, the highest appellate court in North Carolina.  There are generally two ways to appeal a decision to the Supreme Court.  The first is based upon a dissenting opinion at the Court of Appeals.  The next is by successfully seeking discretionary review.  

Judges on the North Carolina Court of Appeals sit in panels of three to hear a case.  Sometimes one of the paneled judges will disagree with the outcome or reasoning of the majority opinion and file a “dissenting opinion,” setting forth the reasons he or she did not join the majority.  If this occurs, the loosing party may notice appeal to the Supreme Court based upon the dissenting opinion.   The appeal, however, is limited to the legal issues addressed in the dissenting opinion.  If a party wishes to address another facet of the case not addressed by the dissent, that party must file a petition for discretionary review as to that additional issue.  

If the Court of Appeals opinion is unanimous, parties must seek discretionary review, usually by way of a “petition for discretionary review.”  A petition for discretionary review is a document filed with the Clerk of the Supreme Court and circulated to each justice setting forth reasons why the case warrants further consideration.  Thereafter, the justices gather together and vote on whether to hear the case. 

A petition for discretionary review typically contains, among other things, a statement of the relevant facts, relevant procedural history and, importantly, a thorough discussion demonstrating that the case warrants further review by the Supreme Court.  In sum, a lawyer must demonstrate in the petition that the case satisfies at least one of the following criteria.  First, a lawyer must demonstrate to the Supreme Court that the subject matter of the appeal has significant public interest.  Second, the Supreme Court may grant review because the case involves a legal principle of major significance to the jurisprudence of the State.  Last, the Supreme Court may review the case because the decision of the Court of Appeals likely conflicts with a decision of the Supreme Court.  

It is not enough to merely assert that a case involves one of the three criteria for review; the lawyer must concisely and persuasively demonstrate how the case satisfies one of the above-mentioned criteria.  Each year the Supreme Court receives hundreds of petitions seeking review and allows only a small percentage.  It is, therefore, critically important that the lawyer handling the appeal be experienced in these matters.  


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