You all know the procedure for getting into and out of the jurisdiction of the Business Court. It's kind of like the Hotel California: "you can check in any time you like, but you can never leave." I don't know why people fight so hard to leave "such a lovely place," but there are often challenges to the Court's mandatory jurisdiction, and the Chief Judge rarely grants them.
There's a "check out" procedure in G.S. §7A-45.4 which has never been used before. It is about to be tested for the first time. Section 7A-45.4(e) says:
Based on the opposition or ex mero motu, the Business Court Judge may determine that the action should not be designated as a mandatory complex business case. If a party disagrees with the decision, the party may appeal to the Chief Justice of the Supreme Court.
Unless I've missed it, which seems unlikely to me, no party has exercised the statutory right to challenge a Business Court Judge's denial of an opposition to its jurisdiction by an "appeal to the Chief Justice of the Supreme Court."
Well, now that is happening, in a case called Ekren v. K&E Real Estate Investments, LLC. I am so excited that I can barely wait to see what will happen.
The Ekren case, which from the Complaint looks like it is well within the scope of the Court's mandatory jurisdiction, has already been through the opposition procedure. Judge Jolly denied the opposition to jurisdiction on April 4, 2012.
A "Motion for Supreme Court to Revoke Status As Mandatory Business Court Case" was filed by the Plaintiff on April 23rd.
Does the Motion qualify as an "appeal," which is what the statute dictates? The Defendant has raised exactly that challenge in its Brief in Response to the Motion. It says that the Plaintiff hasn't appealed by filing a Motion, and that it should have filed a Notice of Appeal. The Plaintiff could have done that because Rule 3(a) of the Appellate Rules says that "[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subsection (c) of this rule."
An "appeal" is defined in one of my dictionaries as "an application or resort to another person or authority, esp a higher one, as for a decision or confirmation of a decision." The Motion by Ekren certainly fits that definition. It might have been more appealing to title it as "Appeal to the Chief Justice to Revoke Status As Mandatory Business court Case." And as far as whether a Notice of Appeal was necessary, can you even file a Notice of Appeal just to the Chief Justice, as opposed to the entire Supreme Court?
And there's one last question that I see. The way that Section 75A-4(e) is worded, it seems to be limited to appeals from the Business Court's determination that a case is outside its jurisdiction, which is the opposite of the ruling in Ekren.
What happens now? Only Chief Justice Sarah Parker can decide to handle this unusual procedure. The eyes of the world are upon her.
[Update: The Chief Justice denied the "appeal" in a summary order on May 17th. I wrote about that here.]