Full speed ahead: GOP lawmakers plow ahead with plans to remake the state court system

It’s starting to look like “court-packing” may not be as dead in the water as some Republican lawmakers said it was in December.

The General Assembly passed House Bill 239 this week, which would reduce the Court of Appeals from 15 judges to 12 and add more than 100 cases per year to the state Supreme Court’s workload. Gov. Roy Cooper plans to veto the legislation.

“The Republican effort to reduce the number of judges on the Court of Appeals should be called out for exactly what it is – their latest power-grab, aimed at exerting partisan influence over the judicial branch and laying the groundwork for future court-packing,” states a press memo from his office.

The bill was passed without support from Democrats, lawyers, current and former judges, advocacy organizations and others from the legal community. It was also passed based on incorrect data from Reps. Justin Burr (R-Montgomery, Stanly) and Sarah Stevens (R-Surrey, Wilkes), who actually presented the wrong statistics at a committee meeting despite attempts to correct her.

“GOP judicial power grabbing is not likely to stop at the Court of Appeals,” Cooper’s memo states.

Evidence shows that Cooper’s claim is probably true, especially given that Stevens has already publicly alluded to a plan to expand the Supreme Court. Experts have expressed concern that the state is on its way to destroying the independent judiciary.

Here’s a quick look at some of the changes Republican lawmakers have already made to the courts and some of their judiciary-related bills that remain pending.

Passed:

Senate Bill 4: This bill, which was passed and signed into law by former Governor McCrory last December, reestablished partisan judicial elections for the state Supreme Court and Court of Appeals, added a layer to the appellate process (which also added to the court’s workload) and eliminated a direct right of appeal to the state’s high court for some cases – cases that involve the General Assembly. Some of the law was struck down recently in the courts, but not any of the sections that have to do with the judiciary.

**Note: This bill emerged and was passed after weeks of rumors that GOP leaders planned to expand the state Supreme Court in response to Democrat Justice Mike Morgan having bested incumbent Bob Edmunds in the November 16 election in order to preserve a Republican majority on the court. That didn’t happen, but Senate President Pro Tem Phil Berger highlighted Morgan’s election as an example of “problems with the current system” when referring to making judicial elections partisan again.

HB100: A complimentary bill, if you will, to SB4, in making all judicial elections in North Carolina partisan – this measure adds party labels to Superior and District Court judicial candidates. Cooper vetoed this legislation but Republican lawmakers, who hold a super-majority, overrode his action, and the bill is now law. The state joins only seven others across the nation that have partisan judicial elections.

HB239: This is the bill reducing the Court of Appeals from 15 judges to 12. It is awaiting gubernatorial action. The Court of Appeals currently has an 11-4 Republican majority, compared to the Supreme Court, which has 4-3 Democratic control. The states rationale for the bill – to respond to a supposedly shrinking workload for the court — does not appear to be supported by the facts. From Jan. 1 to Dec. 31, 2016, there were 1,339 appeals filed with the court, 865 petitions and 3,856 motions. During the same period the court disposed of 1,500 appeals (1,366 by written opinion) and 4,456 petitions and motions. To compare, there were 1,417 appeals filed in 2015, 897 petitions and 3,605 motions. During the same year, the court disposed of 1,176 appeals (1,019 by written opinion) and 4,113 petitions and motions. Appeals can be disposed of by written opinion or by way of some other type of order.

Awaiting action:

HB124: This bill asks the North Carolina Courts Commission to study the organization of the Superior Court, District Court, prosecutorial and public defender districts. The Commission is requested to include in its study the cost of redistricting, the desirability of having all districts being the same, and uniformity in election processes and procedures for filling vacancies of judicial officials.

HB335: This bill would take away some of Cooper’s judicial appointment powers. He can currently appoint anyone he sees fit to fill district attorney vacancies and vacancies on the Supreme Court, Court of Appeals and Superior Court. This bill would change his power to require that he appoint from a list of three recommendations compiled by an executive committee of the political party with which the vacating member was affiliated when elected.

HB240: This bill would take away Cooper’s power to appoint District Court vacancies and allow the General Assembly to instead make those appointments.

HB241: This bill would remove Cooper’s power to appoint Superior Court judgeships and allow the General Assembly to instead make those appointments.

SB306: This is a bill to subdivide Mecklenburg County District Courts to mirror the Superior Court districts. Proponents of the bill say that it will help voters get to know their elected judges better since the districts will be smaller and make it more affordable for judicial candidates to run in elections. Opponents of the bill say there’s no reason for it other than to continue politicizing the courts. They see it as another attempt by Republicans to ensure their party takes over the bench in North Carolina. Mecklenburg District Court judges recently spoke against the bill at a press conference – a rare move for judicial officials.

This is not a complete list of every bill filed by lawmakers that would have some effect on the judicial branch in North Carolina. The bills highlighted have been discussed and pointed to by officials and advocates as part of a larger attempt to politicize the courts.

The General Assembly’s impending April 27 “crossover” deadline could constitute a roadblock for some of these proposals in that bills which do not win the approval of at least one legislative chamber by that date are technically ineligible for further consideration during the legislative session. There are, however, many ways for legislative leaders to evade the crossover restriction so all will likely bear watching until the legislature adjourns sometime this summer.

Cooper’s memo argues that attempts to manipulate the judiciary are a response to court defeats Republicans have suffered in recent month and years. It also observes, however, that, if passed, the new proposals will likely lead to more lawsuits.

“A long-term Republican plan to fiddle with the courts to satisfy their partisan leanings undermines the basic checks and balances of state government and is not in the best interest of North Carolinians,” the memo states. “It distracts from the urgent priorities at hand. Governor Cooper respects our state’s separation of powers and will continue to fight overreach by the legislature.”