On Wednesday, the General Assembly overrode the Governor’s veto of House Bill 239. Against opposition from the bench and the bar, the legislature pushed the court-shrinking bill through on a mostly party–line vote. The override votes came on the heels of a remarkable move by retiring Judge Douglas McCullough–a registered Republican–who reportedly retired a month early to avoid having his seat eliminated by the bill.
Moving beyond the political turmoil surrounding the bill, let’s summarize what the bill means for our appellate courts:
1. Court of Appeals Will Get Smaller–But When?
The Court of Appeals will lose three seats, shrinking to 12 jurists. There is no strict timeline for the downsizing. A seat will be abolished only when a sitting judge dies, resigns, retires, or is impeached under the constitution or otherwise removed by the Supreme Court in connection with a Judicial Standards Commission investigation. It could take considerable time before all three seats disappear. One possible scenario would involve only one seat being abolished in the near term: when Judge Hunter reaches mandatory retirement age on March 30, 2019. The next two judges to reach mandatory retirement age–Judge Calabria in October 2019 and Chief Judge McGee in September 2021–will both have elections just months before they would be required to retire. Predicting the composition of the court, or the legislature for that matter, much beyond 2021 involves too much speculation to be of any utility.
2. All Class Certification Decisions Are Now Immediately Appealable, and Directly to the Supreme Court
Any decision of a trial court regarding class certification is now immediately appealable directly to the Supreme Court. This is actually two changes in one. First, under prior law, orders denying class certification were immediately appealable, while orders granting class certification were not. The inability to immediately appeal from an order granting class certification posed a problem for defendants, because cases with certified classes almost always settle instead of going to trial. As a practical matter, then, defendants never obtained appellate review of orders granting class certification (in state court). With H239 on the books, defendants now have one more opportunity to avoid class certification before facing the settlement-or-trial decision. Second, the bill sends all orders on class certification directly to the Supreme Court. Under prior law, orders denying class certification entered by a superior court (other than the business court) were reviewed first by the Court of Appeals.
3. A Party Has Another Ground to Bypass the Court of Appeals
A party seeking discretionary review in the Supreme Court before the Court of Appeals has ruled in an appeal may now raise an additional ground in such a so-called “bypass PDR” or “PDR prior.” The Supreme Court may now allow such direct review if “the subject matter of the appeal is important in overseeing the jurisdiction and integrity of the court system.”
4. Termination-of-Parental-Rights Orders Will be Appealed Directly to the Supreme Court–But Not Until January 2019
For all cases appealed on or after January 1, 2019, review of any order resolving a motion or petition to terminate parental rights will lie directly in the Supreme Court. Such appeals are currently subject to expedited procedures as set forth in Appellate Rule 3.1. The rules governing such appeals will likely require revisions (including, at least, removal of references to the Court of Appeals). In any event, there were 191 opinions issued by the Court of Appeals in Rule 3.1 cases in 2016. Not all of those involved termination of parental rights, but a majority did.