Lawmakers move to restrict challenges to legislation

Editorial by Asheville Citizen-Times, August 20, 2014.

The General Assembly is concerned that too many of its laws are being subjected to constitutional challenges. Its solution is a potentially unconstitutional provision tucked into the state budget making it harder to make such challenges.

Under the provision, all constitutionality challenges will be heard in Raleigh by a special three-judge panel appointed by the state’s chief justice. Its decisions could be appealed only to the state Supreme Court, bypassing the Court of Appeals.

Legislative leaders are unhappy that so many of their laws have been challenged and that enforcement has been blocked pending the proceedings. The new law also allows challenged laws to remain in force during litigation, never mind what irreparable damage could be done in the meantime.

The leaders claim plaintiffs engage in venue shopping, seeking a judge they believe will be sympathetic to their case. “Venue-shopping … undercuts the credibility and legitimacy of the judiciary if you have that perception of venue-shopping, whether it’s true or not whether a judge is biased one way or another on any given case,” said Sen. Buck Newton of Wilson.

Notice that Newton, who is a lawyer, offers no evidence in support of his claim, but merely states it as a fact. We wonder how far he would get in court if he presented no evidence in support of his client.

This move offers plenty of constitutional questions, questions that have never been litigated because no other state ever has dared to trample on its citizens in this manner.

The bar association, which represents 20,000 lawyers, opposes the move. “It’s extremely disturbing,” said Catharine Arrowood, association president. Also concerned is the agency that operates the court system.

“We believe this concept should have been given additional review and consideration from appropriate stakeholders,” said Sharon Gladwell, spokeswoman for the state Administrative Office of the Courts. “We have both legal and practical concerns with this provision.”

The legal concerns involve the rights of the people to challenge laws they believe to be unconstitutional. The practical concerns involve the difficulty and inconvenience of having all cases heard in Raleigh even when they originate in a distant county.

Francis X. De Luca, president of the Civitas Institute, says, “You’d have to think hard to remember a time when we had this number of laws declared unconstitutional in this quick a time.” He implies that this is a result of venue shopping until a plaintiff “finds a judge they’re pretty sure will side with them and declare it unconstitutional.”

A more plausible explanation is that no previous General Assembly has passed so many laws of dubious constitutionality. Consider the attempts to strip teachers of job protection, or to make it harder for people to vote, or to give students vouchers to attend private schools. Both the tenure and voucher laws have been blocked by Superior Court judges.

Newton had plenty of high-sounding phrases about “ways we could improve the efficiency of the court system, concerns we had about venue shopping, wanting to ensure the stability of the judicial process, balancing that with the democratic process of lawmaking.”

How it improves the efficiency of the court system to require litigants and judges to travel to Raleigh from outlying areas is a mystery to us.

We’ll bypass for the moment how “democratic” the lawmaking process is in light of the gross gerrymandering of legislative districts.

But it does not override the constitution and it is the duty of the courts to see that it does not.

One thing of which we are sure is that there will be one more lawsuit challenging the constitutionality of a legislative act.