The legislature swatted the other two branches of state government at once last week — quite a feat, even for this overly aggressive body.
House Bill 239 reduces the N.C. Court of Appeals from 15 judges to 12 through attrition. The next three who leave the bench won’t be replaced.
The measure was approved with the support of all Republicans in the House and Senate over opposition from Democrats.
It denies Democratic Gov. Roy Cooper the chance to fill vacancies, starting next month when Republican Judge Doug McCullough reaches the mandatory retirement age of 72.
Two more Republicans, Robert N. Hunter Jr. and Ann Marie Calabria, would be next to retire, both in 2019.
Cooper could be expected to replace all three with Democrats if he had the opportunity.
Partisan politics aside, this move will have a major impact on the state’s appellate courts — and it was made without consultation with judicial officials. That creates the strong suspicion that the changes were not made with partisan politics aside.
Sponsors of the measure say they’re trying to re-balance the workloads of the Court of Appeals and Supreme Court. The COA, our state’s intermediate appellate court, is doing less, legislators say. Indeed, case filings in 2015-16 fell to 2,183 from 2,594 in 2011-12, according to Administrative Office of the Courts records. Dispositions dropped from 2,775 to 2,229.
One reason may be a greater use of mediation to settle cases. Another is that complex business cases and cases raising constitutional issues now are appealed directly to the Supreme Court, bypassing the Court of Appeals.
Yet, the legislature already ordered a procedural change last year that is just now beginning to affect the COA. This court hears cases in three-judge panels. The change allows parties to petition for review of those rulings by the full COA. This will create more work for the court, forcing it to hear some cases twice.
The court also will have to figure out how to adjust to the loss of one judge, leaving 14. It won’t have five full panels of three judges each but four panels, with two judges left over. The result is sure to delay when some cases are heard.
HB 239 also would route more appeals from the District and Superior Courts around the COA and directly to the Supreme Court. The high court’s workload probably isn’t excessive now, but too many additional cases could produce a backlog. What many Democrats fear is that Republican legislators want to create an emergency on the Supreme Court, which Republicans could use to justify enlarging it. Currently configured with seven justices, the Supreme Court is authorized by the state constitution to have as many as nine.
It so happens that the Supreme Court has a 4-3 Democratic majority. Republican legislators tried to add two Republican justices last year, but then-Gov. Pat McCrory said he stopped the move. Lawmakers could try again, giving themselves the authority to make the additional appointments for the purpose of building a 5-4 GOP majority.
All this richly justifies Cooper’s expected veto of HB 239. Changes to the court of this magnitude should be undertaken only after careful study with participation by judicial branch officials and representatives of the state’s legal community. This has the appearance of partisan politics and nothing else.
The courts are meant to be a co-equal and independent branch of state government. Their job is to protect the rights of the people by providing a check on the power of the executive and legislative branches.
The legislature is claiming too much power for itself, and it shouldn’t get away with swatting the other two branches in one bold stroke.
