For many years, three different options have existed for appealing a decision from the NC Court of Appeals to the NC Supreme Court:
1) The appealing party has a right to such an appeal if the case involves a substantial constitutional question;
2) The appealing party has a right to appeal if one of the three Court of Appeals judges files a “dissent,” which is a contrary and alternative opinion to the two-judge majority; and
3) The appealing party can request that the NC Supreme Court consider the case even though the three-judge Court of Appeals panel was unanimous, but only upon showing that the case has particular importance. For example, one category of particular importance is that the Court of Appeals decision appears to interpret the law differently than the NC Supreme Court has in a prior decision.
Options 1 and 3 have been historically difficult. The NC Supreme court itself decides if an issue involves a constitutional question, and it virtually never finds that it does regardless of how much the issue does depend on interpreting the constitution. Likewise the NC Supreme Court rarely finds that a case falls into one of the “important” categories for discretionary review. That has left option 2, based on a Court of Appeals dissent, as the most reliable way to appeal a Court of Appeals decision.
Recent legislation, though, will eliminate option 2 entirely. As a result, it will be even more true than ever that one’s best and perhaps only chance on appeal will be to the Court of Appeals. Once that Court has made a decision, the chances of further appeal are low.