What they responded back with is disturbing... I asked them for law not opinion.
Ms. Mainville,
Thank you for reaching out to the General Assembly, and for your patience as we read through policies, statutes, and the constitution and raised your concerns with appellate lawyers, judges, and court staff.
You gave us three questions:
Where is the authority for courts to keep three-judge panels anonymous? (no, I asked where is the law)
Are courts charging inappropriate fees? (no, I asked where is the law that allows them to)
Does the Clerk of Court make judicial determinations? (no, I asked where is the law that allows them to based off the statement the legislation attorney stated)
As you know, decisions made in the past can remain until somebody asks questions again. The questions you raised hit upon some of these practices in the courts. In short:
The Court seems to have discretion on releasing names of judges on three-judge panels. It began to release the names of panels on petitions in 2022. In a future rulemaking session, the courts may reconsider the release of judges’ names in other cases. (this is constitutional right - courts can't decide if they want to or not. In addition, I provided the committee with order in 2023 and 2024 that do have judges name on them and how they are released in the news)
Your question about fees raised a few issues. “There is no fee for filing a motion in a cause.” A filing for a case still in trial court does not fit this definition. I expect the courts will try to address this confusing corner of procedural rules at their next opportunity. (this is laughable and no where does it state this in the law - it applies to all proceedings in the appellate court)
We misspoke on the authority of the Clerk of Court. He is only permitted to sign documents or orders as directed by a three-judge panel. (Belittling me and telling all attorneys know that clerks issue orders as if it is insider knowledge is not a misspoken statement)
Finally, the Court of Appeals makes rules with approval of the North Carolina Supreme Court as outlined in the state constitution and general statute. (EXACTLY - and all the rules above are not in the state constitution or general statute)
Additional details and background
The Court has discretion to release names of judges on panels.
In 2022, the COA began posting, after 90 days, the names of the three judges who decide a petition. This marked a change from long-standing practice. In making the change, the chief judge stated, “Since its founding, the Court has not disclosed the judges who rule on the hundreds of petitions the Court receives each year.” Because it was a well-established practice, there had never been a written rule or statute on this topic. The same practice has been true for motions. You can see the names of judges on your petitions that are more than 90 days old here.
When we raised this question with court staff, they recognized the potential for confusion.
(My response: Your response implies that compliance with the Constitution and Public Records Law is discretionary. That is false. I submitted motions from 2023 and 2024 listing judicial names. The practice has not been uniform, and denying access violates both state and federal law.)
Fees apply if a case is still before a District Court
The records you shared with us include nine fees of $10 each for motions you filed.
Appendix F of the North Carolina Rules of Appellate Procedure contemplates a $10 docketing fee for petitions and states that “there is no fee for filing a motion in a cause.” That last phrase, "in a cause,” is the operative language here. According to COA staff, motions filed at the COA when a party does not have a case pending at the Court have not historically been considered to be filed “in a cause.”
The policy to assess a $10 fee for each filing at this stage of a case dates back nearly fifty years. Now that it has been brought to their attention, the COA may reconsider this policy, in consultation with the North Carolina Supreme Court.
(My response: You claim "in a cause" is the operative phrase. It is not. The operative authority is: “Fees and costs are provided by order of the Supreme Court and apply to proceedings in either appellate court.”)
The $364 you mentioned for sanctions are addressed the North Carolina Rules of Appellate Procedure under Rule 25 on “Penalties for Failure to Comply with Rules” and Rule 34 on “Frivolous Appeals; Sanctions”.
(My response: As for the $364 charge, sanctions were denied—confirming this fee was unauthorized. I am demanding an immediate refund. If this legislature condones theft from constituents, let the record reflect that.)
The Clerk of Court acts solely as directed by the Court
The Clerk of Court has no delegated or discretionary authority to make determinations on any matter. A three-judge panel directs all rulings on motions and petitions.
The General Assembly created the COA in 1967 with G.S. § 7A-16. That same statute dictates that the COA shall sit in panels of three judges or en banc with all appellate judges. As you noted, the law is emphatic about the importance of a full three-judge panel when not sitting en banc: “Three judges shall constitute a quorum for the transaction of the business of the court when sitting in panels of three judges”.
Thus, it takes three judges to make any determination and each document you received affirms it was the decision of a three-judge panel even though the only signature is that of the Clerk of Court, signing on their behalf.
(My response: You now say the clerk cannot act independently. Yet when I challenged this initially, your staff attorney claimed the opposite—that “all attorneys know this is allowed.” Are you now stating that your staff attorney was wrong in his legal interpretation? Will you certify that under oath?)
The NC Supreme Court approves Court of Appeals rules
Article IV, section 13(2) of the North Carolina Constitution and General Statute § 7A-33 charge the NC Supreme Court with the constitutional authority and the statutory duty to adopt rules of procedure for the administration of justice in the appellate courts. The NC Supreme Court allows the NC Court of Appeals (COA) to adopt its own rules under the umbrella of the Supreme Court’s supervisory power in G.S. § 7A-16.
(I initially missed what this was implying here, but followed up today with:
Dear Joe,
I want to acknowledge that I overlooked a key portion of your email yesterday and I'm sorry for that. You stated:
“The NC Supreme Court approves Court of Appeals rules. Article IV, section 13(2) of the North Carolina Constitution and General Statute § 7A-33 charge the NC Supreme Court with the constitutional authority and the statutory duty to adopt rules of procedure for the administration of justice in the appellate courts. The NC Supreme Court allows the NC Court of Appeals (COA) to adopt its own rules under the umbrella of the Supreme Court’s supervisory power in G.S. § 7A-16.”
This raises a serious concern. Your statement implies one of two things:
That the Supreme Court is aware of and condones the misconduct occurring at the Court of Appeals—including judicial anonymity, unauthorized fees, and improper clerk actions—which would suggest systemic collusion; or
That the Supreme Court has failed in its constitutional duty to supervise and adopt enforceable rules, thereby allowing misconduct to go unchecked.
As you surely know, internal policies are not enforceable rules. Under N.C. Const. art. I, § 19 and public access principles, a secret or unpublished policy cannot be treated as governing law. N.C. App 39 requires that all adopted rules be publicly available. If the court is relying on informal or undisclosed policy to deny judge name disclosure, impose fees, or obstruct filings, such actions are ultra vires and unconstitutional.
Moreover, the North Carolina Supreme Court has no authority to override the state’s Public Records Law unless expressly granted by statute or constitutional amendment. Even the Court itself affirmed in News & Observer Publ’g Co. v. Poole, 330 N.C. 465, 478, 412 S.E.2d 7, 15 (1992):
“Public records are the property of the people... The purpose of the Public Records Law is to guarantee that the people may obtain copies of public records and public information.”
By your own framing, this now implicates the Supreme Court’s role in permitting or ignoring constitutional violations under Article IV, § 13(2) and G.S. § 7A-33. This likely explains why they allowed a demonstrably unethical and misleading filing in my appeal to stand without correction, and why my petition for discretionary review was denied without explanation—possibly by a clerk, not a judge. We still don’t know, because their names are concealed.
Accordingly, please add the North Carolina Supreme Court to my request for investigation. If the judicial hierarchy shields wrongdoing rather than correcting it, then the entire structure requires review. We are far beyond internal policy issues—this is now a matter of constitutional governance and public trust.)
I hope this response is helpful.
Best regards,
Joe Coletti House Majority Oversight Staff Director
(919) 831-4261 | Joe.Coletti@ncleg.gov | @joecoletti
I also asked to see where each committee member stood in this by providing a yes or no answer to the following:
Do you acknowledge your constitutional and statutory duty to investigate credible allegations of judicial misconduct—specifically the imposition of unlawful fees, impersonation of judicial authority by the Clerk of Court, and the concealment of judicial identities in violation of public records law and the state constitution?
Yes or No.
I'll post an update once I hear back.