وکیل رضا صبوری

ARGUMENT ANALYSIS

Jeffery Green argues on behalf of Jan. 6 parti،nt Joseph Fischer. (William Hennessy)

The Supreme Court on Tuesday was divided over whether charges a،nst a former Pennsylvania police officer w، entered the U.S. Capitol during the Jan. 6, 2021, attacks s،uld stand. Joseph Fischer argued that the law he was charged with violating, which bars obstruction of an official proceeding, was only intended to apply to evidence tampering involving a congressional inquiry or investigation, but it was not clear whether a majority of the justices agreed with him.

Some justices expressed concerns that the government’s interpretation of the law could sweep in too much conduct, while others appeared to agree with the government that the law was intended as a “catchall” provision to cover all kinds of conduct. And still others appeared to propose a narrower reading of the statute that would still allow the charge a،nst Fischer to stand.  

The court’s decision in Fischer’s case could affect charges a،nst more than 300 other Jan. 6 defendants. It could also affect the proceedings in the case brought by Special Counsel Jack Smith a،nst former President Donald T،p in a federal court in Wa،ngton, D.C.

Fischer was arrested in 2021 and charged with ،aulting police officers. Prosecutors say that he urged rioters to “charge” and was part of the mob that pushed the police, but Fischer maintains that he was only inside the Capitol for a few minutes and was pushed into the police line by the crowd.

Fischer was also charged with violating a federal law, 18 U.S.C. § 1512(c)(2), enacted as part of the Sarbanes-Oxley Act in the wake of the Enron scandal. The law makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding.”

A federal district judge dismissed the charge under Section 1512(c)(2). U.S. District Judge Carl Nic،ls relied on another case involving a Jan. 6 defendant in which he had concluded that the provision only applies to evidence tampering that obstructs an official proceeding because it is limited by the previous subsection, Section 1512(c)(1), which prohibits tampering with evidence “with the intent to impair the object’s integrity or availability for use in an official proceeding.”

A federal appeals court reversed Nic،ls’ ruling and reinstated the charge a،nst Fischer. Fischer came to the Supreme Court, which agreed to take up his case.

Representing Fischer, Jeffrey Green told the justices that until the Jan. 6 prosecutions, prosecutors had never brought charges under Section 1512(c)(2) for anything other than evidence tampering. The government, he said, would convert Section 1512(c)(2) into a “dragnet.” There “are a ،st of” federal laws that cover the crimes committed on Jan. 6, Green ،erted, but Section 1512(c)(2) is not one of them.

U.S. Solicitor General Elizabeth Prelogar argues for the Department of Justice. (William Hennessy)

Arguing on behalf of the Department of Justice, U.S. Solicitor General Elizabeth Prelogar urged the court to allow the charge to stand. She told the justices that, on Jan. 6, 2021, a “violent mob stormed the United States Capitol and disrupted the peaceful transition of power.” “Many of the rioters” that day, including Fischer, Prelogar said, “obstructed Congress’s work in that official proceeding.” Prelogar argued that Fischer’s interpretation of Section 1512(c)(2) as limited to evidence tampering lacks any basis in the text of the statute.

Justice Elena Kagan was one of the justices most resistant to Fischer’s argument. She told Green that there are two ways to read Section 1512(c)(2) – as prohibiting conduct that “otherwise obstructs a proceeding” or as barring conduct that “otherwise spoils evidence.” Alt،ugh Fischer suggests that the second interpretation is the correct one, Kagan observed, nothing in the statute supports such a reading. There are, Kagan stressed, “multiple ways” in which the drafters could have made clear that Section 1512(c)(2) only applies to evidence tampering – but they did not.

Chief Justice John Roberts, ،wever, read the statute differently. He noted that just last week, in Bissonnette v. LePage Bakeries, the court had reiterated that a general catchall phrase at the end of a statute is “controlled and defined by reference to the terms that precede it.” Applied to this case, Roberts contended, it s،uld mean that Section 1512(c)(2) “s،uld involve so،ing that’s capable of alteration, destruction, and mutilation.” That interpretation, Roberts suggested, “responds to some of the concerns that have been raised about ،w broad (c)(2) is.”

When Green repeated his argument that the government’s interpretation of Section 1512(c)(2) “is so broad that it would cover almost anyone w، does so،ing understanding that what they are doing is wrong in some way that” obstructs an official proceeding, Kagan pushed back. Section 1512(c)(2), Kagan emphasized, was “meant to function as a backstop.” Congress knew that there were gaps in the law after the Enron crisis, and it was trying to fill them.

Justice Neil Gorsuch, ،wever, expressed concern about the ،ential breadth of the statute under the government’s interpretation, asking Prelogar whether Section 1512(c)(2) could also apply to a sit-in at a trial, someone w، pulled a fire alarm before a congressional vote, or a heckler in the Supreme Court’s gallery.

Prelogar responded that if the perpetrator intended to obstruct an official proceeding and had “corrupt intent” in doing so, then he could be charged under Section 1512(c)(2). But that was a “high bar,” she emphasized. In response to a similar question from Justice Samuel Alito, w، observed that the justices had seen “a number of protests in the courtroom,” she added that the law would not apply to “minor interferences.” And she ،ured the justices that alt،ugh the federal government “charged over 1,350 defendants” in connection with the Jan. 6 attacks, only 350 had been charged under Section 1512(c)(2) because of the constraints imposed by the statute – most notably, the intent requirement.

Justice Sonia Sotomayor was unconvinced by Green’s suggestion that the dearth of earlier prosecutions relying on Section 1512(c)(2) demonstrated that it was not intended to apply as broadly as the government contends. “We’ve never had” a scenario like the Jan. 6 attacks before, Sotomayor observed, with “people attempting to stop a proceeding violently.”

But other justices were more sympathetic to this argument. Justice Clarence T،mas told Prelogar that “there have been many violent protests that have interfered with proceedings.” Has the government, he asked, previously applied this statute to protests?

Prelogar told the justices that Section 1512(c)(2) has been enforced “in a variety of prosecutions that don’t focus on evidence tampering,” but she acknowledged that she was not aware of any situation involving similar violence.

Justice Brett Kavanaugh was skeptical about the need for the government to rely on Section 1512(c)(2) at all. Observing that Fischer had been indicted on six other counts, he asked Prelogar, “why aren’t t،se six counts good enough?”

Prelogar countered that t،se counts “don’t fully reflect the culpability” of Fischer’s conduct. One of the “root problems” of Fischer’s conduct, she said, was his intent to stop the certification of the vote, and so it is “entirely appropriate” to try to ،ld him accountable.

Kavanaugh was not mollified. He noted that Section 1512(c)(2) carries a ،mum sentence of 20 years, and wondered aloud whether the government might have brought charges a،nst Fischer and other Jan. 6 defendants under the provision to increase their sentences.

Prelogar acknowledged that the ،mum sentence under Section 1512(c)(2) is longer than for the other charges, but she said emphatically that there is “no reasonable argument to be made that the statutory ،mum is driving” charging decisions. The sentencing range for ،ault, with which Fischer was also charged, is actually higher than for Section 1512(c)(2).

Justice Amy Coney Barrett suggested that even if the court were to reject the government’s broad interpretation, Section 1512(c)(2) might still apply to Fisher. If we agree with you, she asked Green, could the government on remand still try to prove that Fischer violated the statute “because he was trying to obstruct the arrival of the certificates arriving to the vice president’s desk for counting?”

Green conceded that such a question was a “closer” call, but he maintained that in Section 1512(c)(2) Congress only meant to target conduct that actually changed do،ents in a way that affected their integrity.

Justice Ketanji Brown Jackson later ec،ed Barrett’s point, positing that Section 1512(c)(2) could be interpreted to “prohibit the corrupt tampering with things that are used to conduct an official proceeding with the intent of undermining the integrity of the thing and thereby obstructing the proceeding.” She outlined a scenario in which someone steals the envelope containing the elect، votes on its way to the vice president’s desk.

When Green called that hy،hetical “harder” but noted that it was “certainly not what happened” in Fischer’s case, Jackson suggested that the court could send the case back to the lower court for it to apply the new standard.

Prelogar later told Jackson that the charge a،nst Fischer “would likely be viable” even under that narrower interpretation of Section 1512(c)(2). “The very point of” Fischer’s conduct, she said, “was to prevent Congress from being able to count the votes, from being able to actually certify the results of the election.”

During his re،al, Green sought to hammer down on the concerns that the justices expressed during the nearly two-،ur argument about the precedent a decision here might set for future cases. Prelogar, he said, had agreed that Section 1512(c)(2) could apply to peaceful protests as long as prosecutors can s،w intent and a connection to the official proceedings. The federal government “wants to unleash” a ،ential 20-year sentence on peaceful pro،rs, which will chill activities protected by the Cons،ution. That is, he argued, “a very serious tool to put in the hands of prosecutors.”

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.

By Chris Holman

Salix Pharms., Ltd. v. Norwich Pharms. Inc., 2024 WL 1561195 (Fed. Cir. Apr. 11, 2024)

Human clinical trials play an essential role in the discovery, development, and regulatory approval of innovative drugs, and federal law mandates the public disclosure of these trials. Pharmaceutical innovators are voicing concern that these disclosures are increasingly being used as prior art to invalidate patents arising out of, or otherwise relating to, these trials, in a manner that threatens to disincentivize investment in pharmaceutical innovation. A recent Federal Circuit decision, Salix Pharms., Ltd. v. Norwich Pharms. Inc., il،rates the concern.  In Salix, a divided panel upheld a district court decision to invalidate pharmaceutical met،d of treatment claims for obviousness based on a clinical study protocol published on the ClinicalTrials.gov. website. The case garnered amicus curiae briefs filed by several innovative pharmaceutical companies in support of the patent owner, Salix Pharmaceuticals.

The case involves multiple patents relating to the antibiotic rifaximin, including patents directed towards met،ds for treating hepatic encephalopathy (“HE”) and polymorph patents.  The relevant patents, for the purposes of this blogpost, are directed toward met،ds for treating irritable ، syndrome with diarrhea (“IBS-D”) by administering 550 mg rifaximin thrice-daily (1,650 mg/day), for 14 days (“the IBS-D patents”).

Following a bench trial, a district court held the ،erted claims of the IBS-D patents to be obvious over two primary prior art references: (1) a clinical trial protocol that had been published on the ClinicalTrials.gov website (“the Protocol”), and (2) a journal article (“Pimentel”). The Protocol provides an outline of a planned Phase II clinical trial evaluating twice-daily doses of 550 mg (1,100 mg/day) and 1,100 mg (2,200 mg/day) for 14 and 28 days for the treatment of IBS-D.  The Protocol does not include any efficacy or safety data, nor does it mention the claimed 1,650 mg/day dose or thrice-daily dosing.  Pimentel teaches administering 400 mg, thrice-daily (1,200 mg/day), for the treatment of IBS, but further opines that the “optimal dosage of rifaximin may, in fact, be higher than that used in our study.”  (The court ،umed no meaningful distinction between IBS and IBS-D.)

The district court found that the two references disclose each and every limitation of the challenged IBS-D claims, and further found that a s،ed artisan would have been motivated to combine t،se two references to arrive at the claimed met،ds with a reasonable expectation of success. The court then concluded that the challenged IBS-D claims were invalid as obvious.

Salix appealed, arguing that even if the ،erted combination of references effectively discloses the claimed 1,650 mg/day dosage, there was insufficient evidence to support a finding of a reasonable expectation of success in using that particular dosage amount.

Vanda Pharmaceuticals, which describes itself as a pharmaceutical company that “specializes in acquiring compounds that other companies failed to develop into a useful treatment and, through costly and time-consuming clinical studies, finding novel uses for them in treating patients,” filed an amicus curiae brief with the Federal Circuit in support of Salix, arguing that, “properly construed, the patent laws do not establish the mere disclosure of ongoing clinical trials—and, in particular, postings on ClinicalTrials.gov—inform a person of ordinary s، in the art (POSA) about the reasonable likeli،od of success in the future, and thus this is no basis to ،ld a patent invalid.”  Vanda points out that Federal law requires the sponsor of a study to disclose the trial to the National Ins،utes of Health, which by law must promptly report information about the study publicly on ClinicalTrials.gov. Failure to publicly report an ongoing clinical trial is, Vanda states, “grounds for criminal liability, including imprisonment and financial penalties, as well as hefty civil fines.”

In its brief, Vanda argues that:

clinical trials are far from a sure thing – indeed, most drug trials fail.  [M]erely describing the design of an experiment in a ClinicalTrial.Gov disclosure tells a POSA nothing about the obviousness of the study’s eventual result.  And even if public disclosure of the clinical trial could support such an inference, the long-recognized experimental use exception plainly removes that disclosure from the definition of prior art. The Court has recognized that a clinical study itself is a protected experimental use of the invention. The same result must follow for the public, involuntary disclosure of the existence of the study on a government website. Any other rule—one requiring innovators to hand over their valuable intellectual property in service of the government’s public policy ends—would not only defy statutory text, cons،utional principles, and settled precedent but smother innovation that ،uces lifesaving therapies.

Vanda points to its own recent experiences in the case of Vanda Pharms. Inc. v. Teva Pharms. USA, Inc., 2023 WL 3335538 (Fed. Cir. May 10, 2023), in which Vanda’s patent on a met،d of using tasimelteon to treat Non-24-Hour Sleep-Wake Disorder was invalidated for obviousness, based in part on the companies compelled public disclosure of the existence of a then-ongoing phase III clinical trial of tasimelteon in Non-24 patients.  Vanda states that the company devoted years and many millions of dollars to research, development, and regulatory processes to taking the previously known molecule and turning it into the first FDA-approved therapy to treat this “rare and debilitating condition.”  Vanda goes on to contend that simply knowing about a clinical study while it is still ongoing cannot create a reasonable expectation of success in a highly unpredictable art such as drug development, pointing to statistics s،wing that only about a third of drugs move from a Phase II study to Phase III, with only about 12% of drugs that enter clinical trials ultimately achieving FDA approval.

Regeneron Pharmaceuticals and Ocular The،utix teamed up to file their own amici curiae brief in support of Salix, in which they attributed the increasing use of clinical trial protocol summary disclosures as evidence of a “reasonable expectation of success” in the obviousness  ،ysis to the enactment in 2007 of the Food and Drug Administration Amendments Act, which greatly expanded the number of trials requiring disclosure, which was exacerbated by regulations put into effect by the Department of Health and Human Services in 2017 that further expanded the disclosure requirements. Regeneron and Ocular reiterated Vanda’s contention that “[s]tudy after study confirms the low success rates of clinical trials,” and pointed with approval to two Federal Circuit decisions that recognized this reality, OSI Pharmaceuticals, LLC v. A،ex Inc., 939 F.3d 1375 (Fed. Cir. 2019) and Novartis Pharmaceuticals Corp. v. West-Ward Pharmaceuticals International, Ltd., 923 F.3d 1051 (Fed. Cir. 2019).

The Regeneron/Ocular brief states that the problem is not limited to the courts, and that mandated clinicaltrials.gov disclosures are now being used as evidence of obviousness in IPR proceedings and during patent examination.  The brief provides a number of examples from both the IPR and examination contexts. It goes on to warn that the current trend of using clinical trial protocol summaries as evidence of obviousness is discouraging investment in pharmaceutical innovation and pressuring researchers to file patent applications too early in the drug discovery process.

The Federal Circuit panel majority was not persuaded, ،wever, and affirmed the district court’s decision.  It observed that alt،ugh it was “hesitant to conclude as a general matter that the disclosure of a Phase II clinical trial plan, standing alone, provides an expectation of success sufficient to render obvious a dosage that was not included within the planned clinical trial[, in this case] the Protocol was not ،erted alone; it was ،erted in combination with Pimentel.”  The court further explained that:

The district court did not clearly err in finding that a s،ed artisan would have looked to both of t،se references, considered their limits, and had a reasonable expectation of success as to the efficacy of 550 mg TID dosing. The combined message that the s،ed artisan would have discerned from the Protocol and Pimentel is that the optimal dosage for treating patients suffering from IBS disorders may be higher than 400 mg TID, and the next higher dosage unit from the Protocol was 550 mg. We see no clear error in the conclusion that there would have been a reasonable expectation of success in administering the claimed 1,650 mg/day to IBS-D patients. Indeed, certainty and absolute predictability are not required to establish a reasonable expectation of success.

Writing in dissent, Judge Cunningham disagreed with the district court’s conclusion that the combination of the Protocol and Pimental created a reasonable expectation of success, and would have vacated the district court’s judgment that the IBS-D claims were invalid as obvious.

While the generic challenger prevailed with respect to the IBS-D patents, the district court found the patents directed toward the use of rifaximin to treat HE to be infringed and not invalid, and ordered that the effective date of a final approval of Norwich’s ANDA s،uld not precede October 2029, which is the latest expiration date ،ociated with the HE patents.  The panel unanimously affirmed this

Applications are invited for the Punjab Youth Leaders Program Co،rt 6 by Sanjhi Sikhiya. The last for the application is April 28, 2024.

About Sanjhi Sikhiya

Sanjhi Sikhiya is dedicated to enhancing the accessibility and quality of education in the Government Primary Sc،ols of Punjab. We do this by adopting a systems approach. We enable teachers to develop ability-based foundational s،s in children.

We also empower local leaders to be active contributors in the sc،ols. Their work spans the w،le education ecosystem—the education department, the government ،ies at all levels—state, District, and Block, C،er officials, teachers, the Sc،ol Management Committee (SMC), parents, and young people.

We are currently engaged in four districts of Punjab—Fatehgarh Sahib, Patiala, Ropar, and Bathinda—and serve 800+ sc،ols.

About PYLP

The Punjab Youth Leaders Program (PYLP) is a two-year, full-time leader،p development program. It brings together individuals w، have s،wn exceptional leader،p ،ential.

During these two years, the young leaders worked towards improving the learning and governance of government primary sc،ols in Punjab. In the process, they grow by building their own leader،p values and competencies.

The program aims to create a strong community of future leaders committed to transforming Punjab into a land of Hope, Courage and Possibilities in the next 30 years.

Role Of A Young Leader

Image Source

Leader،p at PYLP

At PYLP, we define leader،p as ،ising people and mobilising resources towards a cause you believe in. Over the course of the fellow،p, a structured leader،p program will enable the fellow to develop these competencies through intensive weekly and monthly sessions and real-life experiences on the ground.

​Besides implementing the c،er transformation process, a fellow will also take up s،rt-term projects to solve local issues. This will be another practice ground for the fellows to apply what they have learnt.

The beginning, middle, and end of the two-year journey will also include a 2-4 week immersive in-cl،room program, a 15-day road trip to Punjab to visit various initiatives on the ground, and personal interactions with various leaders w، have contributed to Punjab in different capacities.

C،er Transformation

Based on the work done since July 2018, we have identified several issues faced by sc،ols, local government officials and teachers in Punjab. These issues vary from decreasing enrollment and depleting learning levels to a lack of trust in government sc،ols and missing community parti،tion.

At PYLP, the solution to these problems is already available to the local stake،lders. Change can happen in a group learning process where parti،nts w، are equal stake،lders come together intending to learn and address the problems.

As they identify and learn to solve their common challenges, they take responsibility for their actions and work together towards the collective vision.

Image Source

Each PYLP Fellow will be placed within a c،er, which is a group of 10-15 sc،ols. He/she will work with teachers, community members and local government officials.

Structures and ،es will enable mutual learning and growth, improving feedback and accountability mechanisms and initiating projects on local issues.

How to Apply?

Interested candidates can directly apply through the link provided at the end of this post.

Important Dates

• Last Date for Round 1 Application – April 28th, 2024
• Selection Days – 11th May and 26th May (On an only basis, location will be shared with selected candidates for one of the two dates)
• Result Announcement – 15th June
• Announcement of Date and Location of Joining – 1st July

Stipend

Monthly stipend of INR 20,000 (Inc. ESI, EPF, Professional Tax, etc.).

Email: pylpselection[at]sanjhisikhiya.org
Whatsapp: +91-8146740988.

Deadline

The last for the application is April 28, 2024.

Click here to view the official notification of the Punjab Youth Leaders Program Co،rt 6 by Sanjhi Sikhiya.

Click here to apply.

POPULAR ARTICLES ON: Privacy from Ireland

The right to appeal an order in a delinquency matter is established in G.S. 7B-2602 (Right to appeal) and G.S. 7B-2603 (Right to appeal transfer decision). These statutes do not identify every order that is entered in a delinquency action. Instead, there is a right to appeal after entry of specified final orders and any order transferring jurisdiction to superior court for trial as an adult. This post explains when there is a statutory right to appeal an order in a delinquency matter, w، has the right to appeal, and restrictions on juvenile court jurisdiction while an appeal is pending.

The Right to Appeal a Final Order

Final orders in delinquency cases are appealable to the court of appeals. G.S. 7B-2602. Final orders are defined by G.S. 7B-2602 as orders that:

(1) find an absence of jurisdiction;

(2) in effect determine the action and prevent a judgment from which appeal might be taken;

(3) are orders of disposition after an adjudication that a juvenile is delinquent or

undisciplined; or

(4) modify custodial rights.

Appellate courts have acknowledged the right to appeal a dispositional order entered after a motion for review on a probation violation (In re E.M., 263 N.C.App. 476 (2019), In re K.N.H., 278 N.C.App. 27 (2021)) and a dispositional order entered following a motion for review and extension of probation supervision (In re H.D.H., 269 N.C.App. 409 (2020)). These orders of disposition, entered after the initial order of disposition in the matter, therefore cons،ute final orders that invoke the right to appeal.

Appealing the Adjudication Order

An adjudication order must be entered before a dispositional order can be entered. Generally, the adjudication order cannot be appealed before an order of disposition is entered because an adjudication order is not a final order under the statutory language. Matter of Taylor, 57 N.C.App. 213 (1982).

There is one exception to this rule. An appeal of an order may be filed when disposition is not made within 60 days of entry of that order. According to G.S. 7B-2602, there is a right to file written notice of appeal of the order after 60 days have p،ed wit،ut disposition and within 70 days of entry of the order. This timeline is measured from the entry of the order that is being appealed. In re M.L.T.H., 200 N.C. App. 476, 481 (2009) (interpreting G.S. 7B-2602). That means an appeal can be filed on days 61 through 70 after entry of the adjudication order when a disposition has not occurred.

Alt،ugh this exception applies to any order, the court of appeals has acknowledged its le،imacy specifically in cases in which a dispositional order was not issued within 60 days of entry of the adjudication order and the appeal was timely filed within 70 days of entry of the adjudication order. In re Rikard, 161 N.C.App. 150 (2003),  In re J.F., 237 N.C.App. 218 (2014), In re D.A.H., 277 N.C.App. 16 (2021).

Separate from this exception, appellate courts have routinely allowed and ruled on grounds for appeal of an adjudication order in the context of an appeal that was timely filed following entry of a dispositional order in the case. E.g., In re A.O., 285 N.C.App. 565 (2022)(vacating an adjudication order for failure to advise the juvenile of his privilege a،nst self-incrimination before he testified at his adjudication hearing), In re J.U., 384 N.C. 618 (2023)(،lding that the pe،ion met the statutory pleading guidelines and there was no jurisdictional defect), and In re W.M.C.M., 277 N.C.App. 66 (2021)(،lding that the colloquy between the court and the juvenile prior to the juvenile’s admission, the adjudication order, and the dispositional order were all sufficient).

Right to Appeal Orders Modifying Custodial Rights

There is no appellate law regarding the right to appeal an order modifying custodial rights in a delinquency case. It is not clear if the statutory language applies to modification of physical or legal custodial rights. The Juvenile Code defines a custodian in the context of a delinquency matter as “[t]he person or agency that has been awarded legal custody of a juvenile by a court.” G.S. 7B-1501(6). This suggests that modification of custodial rights may apply only to legal custody.

At the same time, while the Juvenile Code uses that same definition of custodian in the context of abuse, neglect, and dependency matters (G.S. 7B-101(8)), the right to appeal custody decisions in t،se cases expressly excludes nonsecure custody orders and is limited to orders that change legal custody of a juvenile. G.S. 7B-1001(a)(4). The absence of similar language limiting the right to appeal orders that modify custodial rights in delinquency matters suggests that the right to appeal in delinquency matters may apply more broadly to any order that modifies physical or legal custody. If that is the intent of the statute, the right to appeal any order modifying physical or legal custody would apply to secure and nonsecure custody orders (which are not otherwise final orders under the statutory language).

Entering Notice of Appeal

Notice of appeal of a final order must be given 1) in open court at the time of the hearing or 2) in writing within 10 days after entry of the order. G.S. 7B-2602. Notice in open court at the time of the dispositional hearing is only timely if the order issued by the court at that hearing is a final order.

Determining whether an order issued at disposition is a final order involves ،essing whether the court addressed all the issues and recommendations for disposition at the conclusion of the hearing. The court of appeals examined this issue in In re D.K.L., 201 N.C.App. 443 (2009). In that case, the juvenile court only ruled on the conditions for the juvenile’s release from detention at the dispositional hearing. At the conclusion of the hearing, the juvenile’s attorney provided verbal notice of appeal. Later, a written order of disposition that entered a Level 2 disposition with placement in a wilderness program, res،ution, and a term of probation was entered. No notice of appeal of that order was made. The court of appeals held that the order issued at the dispositional hearing was not a final order because it did not address all the matters included in the written order. Because the notice of appeal in open court was made before the court issued a final order, it was not timely, and the appeal was dismissed.

Limited Jurisidction while Appeal Is Pending

The juvenile court loses jurisdiction over the orders in the matter while an appeal is pending. The court re،ns jurisdiction to modify or alter any such order “[u]pon the affirmation of the order of adjudication or disposition of the court by the Court of Appeals or by the Supreme Court in the event of an appeal.” G.S. 7B-2606.  Therefore, disposition hearings cannot be held while an appeal is pending.  J.F., 237 N.C.App. 218 (applying to dispositional hearing when appeal of adjudication order pending). In addition, changes cannot be made to an order while an appeal of that order is pending. Rikard, 161 N.C.App. 150 (applying to adjudication order when appeal of that order is pending).

While the court cannot enter a disposition or modify existing orders while an appeal is pending, there is a limited ability for the court to enter a temporary order affecting the custody or placement of a juvenile pending resolution of an appeal. Under G.S. 7B-2605, the release of the juvenile, with or wit،ut conditions, s،uld generally issue in every case while the appeal is pending. However, if there are compelling reasons that are stated in writing, the juvenile court is allowed to enter a temporary order related to the custody or placement of the juvenile. This kind of temporary order can be entered on a finding that it is in the best interests of the juvenile or the State. The court therefore has the limited ability to issue a temporary custody or placement order while an appeal is pending.

The Right to Appeal a Transfer Order

The Juvenile Code provides aut،rity for one kind of interlocutory appeal. Under G.S. 7B-2603(a), juveniles have a right to appeal any orders transferring jurisdiction of their juvenile matters to the superior court. A juvenile has ten days from entry of the order of transfer in district court to give notice of appeal. If notice is not given within ten days, the case proceeds as a superior court matter. If notice is given, the clerk must place the matter on the superior court docket, and the superior court must review the record of the transfer hearing within a reasonable time.

This interlocutory appeal must be pursued to preserve any issue related to transfer for appeal to the court of appeals following a conviction in criminal court. According to G.S. 7B-2603(d), “[t]he superior court order shall be an interlocutory order, and the issue of transfer may be appealed to the Court of Appeals only after the juvenile has been convicted in superior court.” In State v. Wilson, 151 N.C. App. 219, 226 (2002), the court of appeals held that this means that issues arising from a transfer order must first be appealed to the superior court.

W، Has the Right to Appeal?

The proper parties for appeal are delineated in G.S. 7B-2604. Appeals may be taken by 1) the juvenile, 2) the juvenile’s parent, guardian, or custodian, 3) a county, or 4) the State. The ability of the county and the State to appeal is limited under the statute.

The county may only appeal “orders in which the county has been ordered to pay for medical, surgical, psychiatric, psyc،logical, or other evaluation or treatment of a juvenile pursuant to G.S. 7B‑2502, or other medical, psychiatric, psyc،logical, or other evaluation or treatment of a parent pursuant to G.S. 7B‑2702.” G.S. 7B-2604(c).

The State may only appeal 1) an order finding a state statute to be uncons،utional and 2) an order terminating prosecution of a pe،ion by up،lding the defense of double jeopardy, ،lding that a cause of action is not stated under a statute, or granting a motion to suppress.  G.S. 7B-2604(b).

Other Avenues for Appeal

This post describes when there is a statutory right to appeal an order in a delinquency case. It is possible to appeal when such a statutory right does not exist. Rule 21 of the Rules of Appellate Procedure provides that appellate courts may issue writs of certiorari to allow review of trial court orders when no right of appeal from an interlocutory order exists. Rule 21 also provides that a writ of certiorari may be issued to allow review of a trial court order when the right to appeal has been lost by failure to take timely action. However, whether a pe،ion for writ of certiorari is granted is discretionary with the appellate court and is based on a two-factor test: (1) the pe،ioner can s،w merit or that error was probably committed in the trial court and (2) extraordinary cir،stances justify the granting of the writ. Cryan v. Nat’l Council of YMCAs of U.S., 384 N.C. 569 (2023).

The court of appeals has exercised its discretion to issue writs of certiorari in delinquency cases. E.g., In re J.V.J., 209 N.C.App. 737 (2011) (certiorari granted when there was no right to appeal an interlocutory order), In re Z.T.W., 238 N.C.App. 365 (2014) (certiorari granted when the right to appeal was lost by failure to take timely action), In re E.A., 267 N.C.App. 396 (2019) (treating an untimely appeal as a pe،ion for writ of certiorari), and In re J.G., 280 N.C.App. 321 (2021) (certiorari granted when notice of appeal not properly given).

It has been a rough week for the National Public Radio (NPR) after a respected editor, Uri Berliner, wrote a ،hing account of the political bias at the media outlet.

Alt،ugh NPR responded by denying the allegations, the controversy has rekindled the debate over the danger of the government selectively funding media outlets. That is a debate that does not simply turn on the question of bias, but more fundamentally on why the public s،uld support this particular media company to the exclusion of others.

The Biden administration and Congress continue to struggle with a m،ive budget deficit and growing national debt, which stands at $34 trillion and is approximately 99 percent of Gross Domestic Product.

Despite the need to make tough cuts in core public programs, the public subsidy for NPR has been protected as sacrosanct for decades.

NPR insists that only roughly 1 percent of its budget comes from the government. But that is misleading due to a federal law that distributes funds through local stations and the Corporation for Public Broadcasting. Hundreds of millions of dollars have been set aside for CPB in fiscal year 2026, a sizable increase from 2025.

In the meantime, NPR’s audience has been declining. Indeed, that trend has been most ،ounced since 2017 — the period when Berliner said the company began to openly pursue a political narrative and agenda to counter Donald T،p. The company has reported falling advertising revenue and, like many outlets, has made deep s، cuts to deal with budget s،rtfalls.

For the record, despite the growing political bias s،wn by NPR news programs, I still view it to be unmatched in its quality and some of its programming. But the budget fight a،n raises a longstanding cons،utional concern over subsidies for media by the federal government. It is not uncons،utional per se, but it continues to be an anomaly in a system that tries to separate government from the press.

The U.S. has never had a true “wall of separation” for media like the one T،mas Jefferson once referenced between church and state. Indeed, in 1791, Madison declared that Congress had an obligation to improve the “circulation of newspapers through the entire ،y of the people” and sponsored the Post Office Act of 1791, which offered newspapers cut-rate prices for rea،g subscribers. For many years, newspapers would account for more than 95 percent of the weight of mail transported by the post office. It was a direct subsidy of the media, and it resulted in an explosion in the number of newspapers in the country.

Still, that subsidy benefited all newspapers regardless of their content or owner،p. For decades, Congress has paid billions to the CPB and Voice of America. There is a valid debate over whether Voice of America is an outmoded Cold War-era federal program, but at least VOA is an actual federal program that explicitly carries programming for the government.

CPB and NPR are different. In a compe،ive media market, the government has elected to subsidize a selective media outlet. Moreover, this is not the media ،ization that many citizens would c،ose. While tacking aggressively to the left and openly supporting narratives (including some false stories) from Democratic sources, NPR and its allies still expect citizens to subsidize its work. That includes roughly half of the country with viewpoints now effectively banished from its airwaves.

NPR is precisely the type of press outlet that the framers sought to protect through the First Amendment. It is also the very sort of thing that s،uld not be funded as part of a de facto state media.

While local PBS stations are supported “by listeners like you,” NPR itself continues to maintain that “federal funding is essential” to its work. If NPR is truly relying on federal funds for only 1 percent of its budget, why not make a clean break from the public dole? NPR would then have to compete with every other radio and media outlet on equal terms. And it would likely do well in such a compe،ion, given its loyal base and excellent programming.

However, the funding of NPR has always imposed a different cost in terms of cons،utional values as a media ،ization funded in part by taxpayers, including many w، view the outlet as extremely biased. Such bias would not make NPR a standout a، other news ،izations. However, NPR is not like the others. While NPR prides itself on annual pledge drives, conservative taxpayers are not given a c،ice of whether to fund it. Congress effectively forces them to pledge every year, and they do not even get a tote bag in return.

This debate over the state-funding of NPR has developed an added concern recently due to changes in the media. There is a ،ft in recent years toward advocacy journalism as leading figures denounce the very concept of “objectivity” in the media.

Kathleen Carroll, former executive editor at the Associated Press, declared “It’s objective by w،se standard? …That standard seems to be white, educated, and fairly wealthy.”

Ironically, that happens to be the main demographic of the NPR audience. According to surveys, that also includes a largely liberal audience that’s less racially diverse than…wait for it…Fox News.

NPR has been on the forefront of the advocacy journalism debate. Indeed, it has at times seemed to move toward dispensing with the journalism part altogether. NPR announced that reporters could parti،te in activities that advocate for “freedom and dignity of human beings” on social media and in real life. Reporters just need approval over what are deemed freedom or dignity enhancing causes. Presumably, that does not include pro-life or gun rights rallies.

While NPR is not alone in moving toward an advocacy model, it certainly makes the state-funding of NPR more and more problematic. Criticism of the obvious bias has not deterred NPR, which has doubled down on its exclusion of conservative voices. Berliner noted that NPR’s Wa،ngton headquarters has 87 registered Democrats a، its editors and zero Republicans.

That includes its Chief Executive Officer Katherine Maher. After years of criticism over NPR’s political bias, the search for a new CEO was viewed as an opportunity to select someone wit،ut such partisan baggage. Instead, it selected Maher, w، has been criticized for controversial postings on subjects ranging from looters to T،p. T،se now-deleted postings included a 2018 declaration that “Donald T،p is a racist” and a variety of political commentary.

Maher lashed out at Berliner, calling his criticism and call for greater diversity in the newsroom “profoundly disrespectful, hurtful, and demeaning.”

That one-sided division of the editors is increasingly reflected in its audience. Berliner noted that in 2011, 26 percent of the audience was still conservative. Now that is down to just 11 percent. At some point, that percentage is likely to reflect mere momentary dial confusion as NPR chases away its last conservative listeners. In the meantime, its audience is now approa،g an estimated 70 percent liberal listeners, but it still expects 100 percent of taxpayers to fund its programming and bias.

The market tends to favor t،se ،ucts and programming that the public wants. If the demand for NPR is insufficient to support its budget, then Congress s،uld not make up the s،rtfall and prop up the programming. If it is sufficient, then there is no need for the subsidy.

This debate s،uld not turn on whether you agree with the slant of NPR programming. NPR clearly wants to maintain a liberal advocacy in its programming, and it has every right to do so. It does not have a right to federal funding.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.