An in-depth look at lawmakers' attempt to shrink the Court of Appeals

by Melissa Broughton, NC Policy Watch, March 15, 2017.

Each of the 15 North Carolina Court of Appeals judges writes on average about 100 opinions per year.

When former Judge Linda Stephens used to explain the court’s workload to students, she’d often compare opinions to term papers.

“But that’s a lot more than a term paper,” she said in a phone interview this week.

Appellate court opinions include a summary of the facts in a case, a recitation of applicable law, a breakdown of how that law relates to the facts of the case, an explanation that supports the judges’ decision in the case and a formal judgment.

Opinions are work and time intensive, and they’re not the only part of an appellate judge’s job.

In what’s been characterized by some as Republican lawmakers’ latest power grab, House Bill 239 would reduce the court’s allotment of judges from 15 to 12. The bill comes as three Republican judges face mandatory retirement, and if passed, would prevent Democratic Gov. Roy Cooper from appointing replacements to fill their seats.

More significantly for North Carolinians, the bill would increase remaining judges’ workload and likely result in delays, both in getting an appeal heard and in getting a decision.

Rep. Justin Burr (R-Montgomery, Stanly) has insisted the bill was introduced without political motivation but he’s also said the bill was introduced without consideration or input from the Court of Appeals, its judges or the agency that administers the judiciary, the Administrative Office of the Courts (AOC).

He’s argued to his colleagues that the court’s workload is shrinking but data shows no significant decrease in cases over the past 10 years.

Officials and stakeholders have also criticized the lawmaker for not considering petitions and motions filed in the court in his assessment that the workload warrants a reduction of judges.

“The job isn’t done in a vacuum,” Stephens said. “We don’t just sit behind our desk and do the research on the computer and edit a draft opinion prepared by a law clerk. It’s a whole lot more than that.”

Similarly, former appellate Judge Martha “Marty” Geer has stressed to both lawmakers and reporters that there is so much more than workload to consider when entertaining downsizing the court.

“This is not really about the court’s workload,” she said. “What this is really about is the impact on citizens and businesses. The Court of Appeals is the working court; it’s the people’s court … and so when you decrease it, you are going to adversely affect the ability of North Carolinians, whether its people or businesses, to have their appeals done in a timely fashion.”

Some history 

The North Carolina Court of Appeals was created in 1967 to help ease the Supreme Court’s workload. It began with six judges and as its workload increased, so did the court.

The court was expanded to nine judges in 1969, 12 in 1977 and 15 in 2000.

Republicans have long contended that the expansion in 2000 was partisan, arguing that Democrats were vying to stay in control by allowing outgoing Democratic Gov. Jim Hunt to appoint three new judges instead of putting the seats up for election. Democrats argue that the workload prompted them to expand the court.

The court currently works in panels of three judges, and each panel is given an equal caseload. There are three types of cases: regular appeals, “3.1 cases” (a kind of expedited proceeding involving juveniles) and “fast-track cases,” which can involve criminal or civil appeals.

Geer has talked at length about 3.1 cases and how shrinking the Court of Appeals could result in delays that greatly impact the children of North Carolina.

“These are the cases where kids are in foster care or placed with relatives, and they’re the only ones the Court of Appeals expedites,” she said. “Every day that a child who is in foster care has to wait to know who their parents are going to be, what their destiny is going to be, is torture.”

There is also an en banc process now, which means that losing parties of an appeal can request that all 15 judges re-hear a case. All of the court’s judges review en banc requests and there has to be a majority vote to proceed with a hearing.

The process was added to the court’s workload by the General Assembly during a special session in December. It also was viewed as a partisan move, since en banc reviews could create a delay in getting cases to the state Supreme Court.

The Court of Appeals currently has an 11-4 Republican majority, compared to the Supreme Court, which has 4-3 Democratic control.

The Court of Appeals decides only questions of law, not questions of fact. It reviews cases appealed from lower courts for errors of law or legal procedure. Some of its cases can be appealed to the state Supreme Court.

Workload repercussions

There have not been any formal studies or analyses to determine the court’s current workload in comparison to how many judges should serve. Still, officials say it’s clear from the data that shrinking the court by three judges is not justified.

“The claim that this bill is motivated by workload concerns simply isn’t credible,” said Marin K. Levy, an associate professor of law at Duke Law School.

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.

There was a decrease in 2016 from 2015 by 78 appeals and 32 petitions. The rest of the workload increased by 251 motions, 324 appeal disposals (with an increase of 347 written opinions) and 343 petition and motion disposals.

“It’s not unusual for courts to have fluctuations like this in their workloads,” Levy said. “It’s also worth noting that the Court of Appeals experienced virtually no decrease in the prior year, so it would seem premature to dramatically shrink the Court on these grounds.”

She added that even if an individual thought a reduction in the number of judgeships was appropriate based solely on the reduction in filings, the numbers would not justify shrinking the court by three members.

Court of Appeals caseload

The following numbers represent the caseload in the Court of Appeals for the last 10 years (Jan. 1- Dec. 31). The court currently has 15 judges that work in 3-judge panels. Each judge writes about 100 opinions per year. The General Assembly is trying to reduce the court to 12 judges, which would significantly increase the per judge/per panel workload and likely result in appeal delays.

*Cases can be disposed of by written opinion or by way of some other type of order. Written opinions are usually much more work and time intensive and discuss relevant facts of the case while also applying the law to those facts.

It should be noted, however, that because the court works in three-judge panels, losing even one judge would result in a 20 percent decrease in the amount of work the court can do – as will be the case as soon as May if the bill passes.

Judge Douglas McCullough faces mandatory retirement May 28. HB239 mandates that vacancies not be filled until the court reaches 12 judges.

Geer and Stephens said each Court of Appeals three-judge panel typically hears about 24 cases per month for 10 months out of the year. Those numbers vary, but on average, are pretty on point, they said.

If the court is reduced by a panel, that means 24 appeals per month will not be heard or 240 appeals per year.

“The court will always do a good job but you’re not going to have the luxury of taking more time to think about individual appeals,” Geer said. “When you have judges trying to do more with less, mistakes can be made, and one of the consequences when mistakes are made by the Court of Appeals is that it’s very hard to get them fixed.”

If a Court of Appeals opinion is wrong, the only way to get it fixed is through the Supreme Court or the legislature. Otherwise, the Court of Appeals’ findings become law, and the Supreme Court does not take many cases.

“I’m very concerned,” said Geer, who was first elected to the appellate court in 2002. “The judges are extremely careful … because they’re mindful of the importance of their job, but the last court you want to have under huge pressure to get things done in a short time is the Court of Appeals because so little of their work is or can be reviewed.”

She tried to explain workload and the repercussions of shrinking the court at a House committee meeting during the public comments, but she was limited to one minute and cut off by a legislator when her time was up.

Geer left the Court of Appeals in May of last year to go into private practice. She is now a partner at Cohen Milstein and head of the law firm’s Raleigh office.

Stephens was first appointed to the court in 2006. She lost last year’s election to Judge Phil Berger Jr., who is the son of Senate President Pro Tem Phil Berger.

Political gain

Levy said the natural question that follows even a short analysis of the court’s workload is, “why would the legislature want to reduce the number of judgeships by three? If that number is not supported by the reduction in caseload, where is it coming from?”

Burr has said that he’s long wanted to decrease the size of the Court of Appeals and continuously points to the workload as a reason why.

Levy pointed to the court’s current political makeup and the political makeup of the three judges who are set to retire as the actual explanation.

“It is hard not to draw the conclusion from this data that the legislature wants to ensure that the governor cannot appoint Democrats to those seats – which would bring the number of Republican and Democrat judges close to parity – so as to keep a sizable majority of the judges on the Court Republican,” Levy said.

There’s also more than one way to draw that conclusion. The legislature has had the judiciary in its aim since former Republican Gov. Pat McCrory conceded last year’s election.

It started at a special session in December when Republican lawmakers, who have a super-majority in the State House, passed bills to add party labels to judicial elections, add an en banc process to the Court of Appeals and eliminated a direct appeal for some cases to the state Supreme Court.

At the same time Burr filed HB239, he also filed House Bills 240 and 241 which would strip Cooper of judicial appointment power to fill District Court vacancies and special Superior Court judgeships.

All three of those bills have passed the House and are currently awaiting a hearing with the Senate’s Rules and Operations Committee.

Earlier this week, Burr introduced House Bill 335, which would require Cooper to appoint replacement district attorneys, Supreme Court justices, and judges for the Court of Appeals and Superior Court from a list of three recommendations compiled by an executive committee of the political party with which the vacating member was affiliated when elected.

“It seems like all we’re doing is changing the partisan makeup of the judiciary,” said Rep. Darren Jackson (D-Wake). “I’ve never seen anything like it.”

Jackson, an attorney, argued against and voted against shrinking the Court of Appeals. He also voted against the other recent bills that seem to politicize the courts.

He said that “it just seems like there’s a war on our court system.”

Jackson also pointed out that he’s tried numerous times for six years to get an additional district attorney or judge in Wake County to hear driving while intoxicated cases. He said it’s been difficult and there are formulas that AOC has to run to determine who’s overworked and underworked and by what percentage.

“If you did do a workload study, you’d probably find you need more judges not less. This state is significantly bigger than it was in 2000,” he said of HB239. “This is just not the kind of thing we need to be doing.”

When HB239 was being discussed on the House floor, Rep. Sarah Stevens (R-Surry, Wilkes) alluded to a bigger plan to eventually expand the state Supreme Court – a topic in which rumors swirled after the election of Democrat Justice Mike Morgan to the bench.

“The Supreme Court doesn’t have enough work to do, so by cutting back on some of the Court of Appeals work, we’re going to continue to send more cases directly to the Supreme Court,” Stevens said. “You may see us back here adding more to the Supreme Court load next year or the year after for that very reason. We are trying to equalize the loads between the two.”

Part of HB239 would reroute class action certification appeals, business appeals and 3.1 case appeals (which involve children and issues of abuse and neglect and termination of parental rights) to the state Supreme Court, reducing some of the caseload on appellate judges.

However, it wouldn’t reduce the court’s caseload by much. Since 2012, the Court of Appeals has heard on average less than 10 class action certification and business appeals per year, and between 100 and 200 3.1 cases per year, according to data from the court.

Former Supreme Court Justice Bob Orr, who is a Republican, said HB239 is “obviously done for political motivation.”

“It was concerning when the Democrats played politics with the judiciary and I’m concerned with the Republicans playing politics with the judiciary,” he said.

He added that if he were going to make a change to the court, he’d make regional panels to make it easier for attorneys in the outer geographic regions of the state to run for judgeships.

“Instead of reducing, let’s look at a more effective use of the 15 judges,” Orr said.

As a whole, the various judiciary bills impacting Cooper’s powers raise interesting separation of powers issues, Orr said.

“The separation of powers issue is going to be front and center for a long time to come in a variety of issues,” he said, referencing the power battle between Cooper and the General Assembly. “We need to become more focused on good government rather than good politics. I always heard the best politics was good government.”

When asked about the legislature’s attempts to diminish Cooper’s judicial appointments, spokeswoman Noelle Talley said that the courtroom isn’t a place for political party labels.

“It’s troubling that political groups would make these choices instead of local attorneys recommending qualified legal professionals from their communities,” she said.

A larger trend

North Carolina lawmakers are hardly the first to introduce and pass legislation that politicizes the courts, and this year’s attempts fit a larger, national trend, according to Alicia Bannon, who serves as Senior Counsel in the Brennan Center for Justice’s Democracy Program.

“This year we’ve seen a number of bills coming out of states around the country targeting courts in different ways,” she said.

Arizona, Oklahoma, Florida, Arkansas, Illinois, North Dakota and Washington are just some of the states that have introduced legislation that interferes with court structure.

Some of the bills on their face might seem neutral, Bannon said, “but if you look at the realities of who’s in power and who would be advantaged, they have a plain partisan motivation.”

In more radical examples, Bannon said Florida and Washington are considering legislation that would give their lawmakers the power to override state judicial decisions.

“I do think this is part of a broader trend where we’re seeing a push toward partisan interference with court structure – court rules, judicial selection – to seek partisan advantage, which I think is really dangerous,” she said.

North Carolina has one of the more active legislatures, according to Bannon, and the fact that there is so much traction to actually pass bills makes the state an outlier in the nation.

Bannon and Levy both talked about the damage such legislation could do to the public’s perception of the courts.

“Stepping back, whether wittingly or not, the legislature’s actions risk undermining the independence of our state’s judiciary,” Levy said. “They may be motivated by an attempt to constrain the governor, but the effect is to damage the courts.”

She added that if all the bills go into effect, the legislature will be directly impacting the makeup of the courts and, presumably, certain case outcomes.

“Attempts to pack courts in order to change the law have long been viewed as illegitimate; attempts to ‘unpack’ them should be viewed in the same way,” Levy said.

Bannon said courts are required to decide cases based on the law and facts, and that political and partisan preferences have no place in judicial decision making. She said that lawmakers’ lack of consultation with the courts raises another red flag as to their motivation for recent judicial legislation.

“There’s a lot of things that the legislature could do that would really promote fair and impartial courts in North Carolina, but where they’re putting their attention is someplace entirely different,” she added.

And though it may seem hopeless in the face of a super-majority, Bannon, Jackson and others interviewed for this article reiterated the need for judicial officials and stakeholders to speak out.

Court of Appeals Chief Judge Linda McGee did not return a call for comment, though multiple people commented that she was not made at all aware ahead of time of efforts to reduce her court.

State Supreme Court Chief Justice Mark Martin sent a letter to McGee and other judges on the Court of Appeals letting them know he was not taking a position on HB239.

“As with any pending legislation that may affect the courts, the AOC legislative team is evaluating this bill along with other legislative developments,” he wrote. “If it is determined that a public position should be taken on a matter affecting the administration of justice, our procedure is that this position will be disseminated by the AOC legislative team or by me personally.”

Only Geer and a single attorney spoke publicly against the bill to House lawmakers at a committee meeting. Geer said that while she thinks it is incumbent upon the legislature to have a dialogue before making HB239 law, she hopes others will speak out.

“The judges should come forward and say this is wrong,” she said. “But it’s very hard for a sitting judge and a judges who’s elected to speak out. … That’s why I did; I’m in a better position.”

Bannon said judges and retired judges can be really important spokespeople to explain what the stakes are and what the courts’ needs are.

“Some of these bills can seem technical; it might not be clear what size the Court of Appeals should be,” she said. “If you hear from judges who can speak to what the real needs of the courts are and the kind of areas that the legislature should be focused on, I think it could really help clarify to people what the legislature is doing.”

http://www.ncpolicywatch.com/2017/03/16/depth-look-n-c-lawmakers-attempt-shrink-court-appeals/