On Friday, March 4, 1853, Franklin Pierce became the 14th President of the United States, and to this day he has been the only president to confirm the oath of office instead of swearing it. [Citation needed] A judgment, decree or order that is not upheld is either remanded in custody (referred to the lower court with instructions to correct the irregularities found in the notice of appeal) or set aside (amended by the Court of Appeal so that the decision of the lower court is set aside). Or consider the following scenario. An unpublished notice of the Court of Appeal contains a relevant position on an issue that has not been addressed in any published notice. Later, a published opinion of the Court of Appeal came to the opposite position on this issue. In reviewing this subsequent opinion, the Supreme Court issues a pro-curiam-3 opinion using standard “unprecedented confirmed” language. What expertise is brought before the Court of Appeal the day before when the question arises a third time? The unpublished opinion that first dealt with the subject? The opinion published later, but apparently “published”? Neither? But beyond those directly affected, what will happen to the issues raised before the Supreme Court through an appeal or motion that is upheld without precedent? According to In re Civil Penalty, a dispute involving a question in a published notice of the Court of Appeal is binding on other instances of that court “unless it has been set aside by a higher court.” 324 N.C. 373, 384, 379 pp.e.2d 30, 37 (1989). While the word “repealed” suggests that a 3-3 decision in which the Supreme Court expressly upholds the opinion of the Court of Appeal would set a precedent that binds the Court of Appeal, the immediately following phrase “unprecedented” suggests exactly the opposite. The Supreme Court has not always used language similar to that cited above when the Court is equally divided.

For example, in Johnson State, 286 N.C. 331, 210 p.E.2d 260 (1974), the Court noted that Moore J. did not participate in the case, and then stated: “The remaining six judges, who are equally divided as to whether an adverse error was made at the next hearing, the judgment of the Supreme Court is upheld in accordance with normal practice in such cases and rules on that business, without becoming a precedent. When less than a full group of Supreme Court judges considers a case before the Court of Appeal, sometimes a uniform division results. Nowadays, the tie is usually advertised in a pro-curiam notice, which uses a phrase such as “Given that the members of the Court are equally divided on the two issues, the position of the Court of Appeal remains unchanged and is set unprecedented.” See, for example, Piro v. McKeever, 369 N.C. 291, 794 P.E.2d 501 (2016). But what does “confirmed unprecedented” mean? Unprecedented for whom? Does the phrase “upheld unprecedented” mean that the decision of the Court of Appeal is binding on future judgments of the Court of Appeal and the courts of first instance, but not on the Supreme Court? Or is the Judgment of the Court of Appeal considered “reversed” after a 3:3 decision to determine whether there is a precedent before the Court of Appeal and the lower courts? The language currently used by the Supreme Court in its Opinions 3-3, which is reflected in its wording in In re Civil Penalty, creates an ambiguity that neither court has addressed. The advent of the Court of Appeal created an additional layer of review of the appeal and thus possible changes in the effect of a 3-3 decision of the Supreme Court.

Before the arrival of the Court of Appeal, a 3:3 division always meant that the decision of the Court of First Instance remained unchanged. However, when the Supreme Court considers an opinion of the Court of Appeal, a decision of an equally divided court means that it is the decision of the Court of Appeal that is upheld as “unprecedented”. AFFIRM, PRACTICE. 1. Ratify or confirm a previous law or judgment, as if the Supreme Court were upholding the judgment of the Court of Common Pleas. 2. Give an affirmation or testify by virtue of an affirmation. However, in the Johnson case, the Supreme Court allowed the plaintiffs to bypass the Court of Appeal. The other Supreme Court decisions I could find that used language like Johnson`s all preceded the creation of the Court of Appeal. When the Supreme Court was the only reviewing court, it seemed well established that a 3-3 notice meant that the lower court`s decision was binding on the parties to this case, but not on the Supreme Court.