FSU has filed a Petition for Writ of Certiorari in the NC Supreme Court. My initial thoughts.
I was surprised to hear a cert petition was filed. It's a discretionary appeal, not by right. Most are denied. The standard is usually that the court will only use this when the ruling below is so against the law that it's a miscarriage of justice AND that the issues cannot be fixed on appeal. What is interesting is that the jurisdiction and sovereign immunity issues are already being appealed directly so they will have two appeals going at the same time basically.
On one those (the direct appeal) major issues WILL be decided, and another on (cert petition) issues the court may or may not rule on at this point.
As I read the rest of this, it's all about the direct request to stay the NC case pending resolution of the Florida case. It is not about other dismissal requests that were denied. It is limited to this one issue.
It makes total sense for them to do this. I don't know that they will be successful on the merits. I personally don't think they will be, but I can't say. The stay issues surely implicates the timing issues like who filed first, why, and whether they had authority to do it or later ratified it. But that is not all the issue. Who filed first is step one on the stay/transfer issue. I think the trial judge (who has discretion by the way, so it's not like there is a clear answer for the supreme court). The appeal on THIS issue will be interesting to see. If they do an oral argument the lawyers better be really ready because I think all the stay/transfer factors will be argued strongly.
But overall this is an adjunct "appeal" to the one already filed on jurisdiction and SI, with this one directed at asking the NCSC to hold that the NC case should be stayed while the Fla case proceeds. That would essentially be a ruling that Fla gets to decide the case, and I just don't see that happening on this issue (if it finds no jurisdiction or that SI applies overall or as to where the case can be filed, that is different). I also think this reality makes it more likely the supreme court finds FSU meets the "irreparable harm not subject to remedy on appeal" standard on cert cases - it seems to me the race to the courthouse means that delay is not resolvable on appeal if Florida finishes first.
I was surprised to hear a cert petition was filed. It's a discretionary appeal, not by right. Most are denied. The standard is usually that the court will only use this when the ruling below is so against the law that it's a miscarriage of justice AND that the issues cannot be fixed on appeal. What is interesting is that the jurisdiction and sovereign immunity issues are already being appealed directly so they will have two appeals going at the same time basically.
On one those (the direct appeal) major issues WILL be decided, and another on (cert petition) issues the court may or may not rule on at this point.
As I read the rest of this, it's all about the direct request to stay the NC case pending resolution of the Florida case. It is not about other dismissal requests that were denied. It is limited to this one issue.
It makes total sense for them to do this. I don't know that they will be successful on the merits. I personally don't think they will be, but I can't say. The stay issues surely implicates the timing issues like who filed first, why, and whether they had authority to do it or later ratified it. But that is not all the issue. Who filed first is step one on the stay/transfer issue. I think the trial judge (who has discretion by the way, so it's not like there is a clear answer for the supreme court). The appeal on THIS issue will be interesting to see. If they do an oral argument the lawyers better be really ready because I think all the stay/transfer factors will be argued strongly.
But overall this is an adjunct "appeal" to the one already filed on jurisdiction and SI, with this one directed at asking the NCSC to hold that the NC case should be stayed while the Fla case proceeds. That would essentially be a ruling that Fla gets to decide the case, and I just don't see that happening on this issue (if it finds no jurisdiction or that SI applies overall or as to where the case can be filed, that is different). I also think this reality makes it more likely the supreme court finds FSU meets the "irreparable harm not subject to remedy on appeal" standard on cert cases - it seems to me the race to the courthouse means that delay is not resolvable on appeal if Florida finishes first.
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