Uh-oh. I Think I Need a Bigger Box.

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A year ago, the North Carolina Court of Appeals handed down an opinion in O’Neal v. O’Neal, a small domestic case.

The O’Neal opinion keeps me awake at night. When I need to pull an all-nighter, I sometimes re-read a couple of pages, and it shakes me right up. I thought the appellate bar would say something about O’Neal, but it went quiet.

Pamela O’Neal moved to recuse the trial judge—historically speaking, an unremarkable occurrence in the North Carolina domestic courts.

Pamela first perceived bias at a settlement conference when her trial judge commanded that Pamela make an offer to settle—but did not make a symmetrical command to the other side, Pamela’s estranged husband. Pamela felt that the judge had made up her mind that if the case does not settle, it’s Pamela’s fault.

Pamela’s concern grew deeper when the law firm representing her estranged husband faxed over an affidavit written by the trial judge. In the affidavit, the trial judge swore that Pamela remembered the settlement conference all wrong. The Judge swore that she did not command Pamela to make an offer, or, for that matter, did not take any part in any discussion as to when and who would make settlement proposal.

Pamela and the Judge obviously remembered the conference differently. Which of them had better memory? It would be nice to have a record, but the conference was not recorded.

But now Pamela was also wondering: why would the Judge’s affidavit come from the fax machine of the other side? Did the other side ask the judge to write it? Did they help the judge to write it? Hoping to ease her suspicions, Pamela made an inquiry. Getting no immediate response, Pamela sought guidance from the Judicial Standards Commission. Then she moved to recuse the judge. (Eventually, the ex-husband’s lawyers fessed up that they had asked the judge to prepare the affidavit. But they did not help write it, they said.) Appellant’s Brief in chief (filed 09/28/12).

Did Pamela remember the conference wrong? More importantly, was she wrong to worry that her lawyers did not learn that the judge was working on an affidavit until the other side’s lawyers faxed it over? How does one recuse a judge in North Carolina? What’s the standard? Under Lange v. Lange, 357 N.C.645, 588 S.E.2d 877, 880 (2003) a litigant can ask for substitution of a judge if a “rational person could have reasonably questioned the judge’s impartiality.” Would a “rational person” “reasonably question?” The trial judges of Pitt County decided “Absolutely not!”

Then they sanctioned Pamela’s lawyer for even asking.

About 20 states in the country—like Illinois, or California, for example—allow each litigant one peremptory challenge of his judge, no showing of cause necessary. Meaning, no questions asked. Professor Charles Geyh (Indiana University), an expert in the field, says the judges there like the system. A litigant wants another judge? Good riddance. No quibbling over who said what to whom. Definitely no sanctioning anybody for asking to recuse a judge. I think there’s a lot to say for the system. But nobody asked me. We have a different system. This is not even the part that keeps me awake at night.

Pamela’s lawyer (whom the trial court sanctioned for moving to recuse) did not want the blemish on her reputation. She hired a very competent appellate counsel and took the whole thing before the Court of Appeals.

Now comes the part of the North Carolina Court of Appeals’ opinion that keeps me awake. The Court wrote:

Because [Appellant] does not challenge any of the findings of fact, they are binding on appeal . . . O’Neal Opinion at 7.

If you are thinking the same way I do, you exclaim: “Why—oh why would the Appellant (represented by a seasoned and very competent counsel) not want to challenge the findings of fact?!” And you reach for the record. And you learn that the Appellant very much wished to challenge what she viewed as “page after page of harshly critical findings of fact.”

What went wrong? In order to challenge the findings of fact, the Appellant took the ordinary steps: listed the offending findings by number in the Issues; listed them by number in the Brief and addressed what she called the “salient points” in the Brief.

The Appellant’s counsel (supported by 5 other members of the bar, including yours truly) moved for rehearing and asked what needs done to properly challenge findings of fact after O’Neal:

… Appellant respectfully requests that this court clearly and expressly state what the required procedure is, if for no other reason than to warn future litigants. Appellant’s Petition for Rehearing at 9.

But the North Carolina Court of Appeals did not answer. The North Carolina Supreme Court denied Appellant’s Petition for Discretionary Review.

So what do we do now?

I do not have a good solution. Take a highlighter to the challenged findings and later reference them in the Brief as “the text highlighted in green?” Copy the text of the challenged findings of fact verbatim in the Proposed Issues? What I would really love to do would be to copy the offending findings verbatim in the Brief. Of course, to paraphrase the words of actress Gadget,

Uh-oh, I think we need a bigger box… I mean, longer Briefs.

If you are appealing from an order with page after page of facts that you need to challenge, all I can do is refer you to the Motion’s section of this Blog: there are some good examples of Motions for Enlargement of Word or Page limit.

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