House votes to shrink court, strip Cooper powers

Posted March 9
Updated March 10

— Voting mostly along party lines, state House lawmakers approved three bills Thursday to shrink the state Court of Appeals and to give themselves powers of judicial appointment currently given to the governor.

House Bill 239 would reduce the number of judges on the North Carolina Court of Appeals from 15 to 12 by attrition as judges reach the mandatory retirement age of 72.

Three Republican judges are scheduled to retire in the next two years. Under current law, Democratic Gov. Roy Cooper would appoint replacements to fill out their unexpired terms. Those three appointments could shift the balance of the court from Republican to Democratic.

Bill sponsor Rep. Justin Burr, R-Stanly, denied that the move was political, saying instead that it's a response to a drop in caseload at the court and would save taxpayer money.

Fellow sponsor Rep. Sarah Stevens, R-Surry, pointed out the legislation also assigns more types of cases to go directly to the Supreme Court on appeal, thereby reducing the Court of Appeals' workload further.

"The Supreme Court doesn’t have enough work to do," Stevens told the House. "We are trying to equalize the loads between the two."

Rep. Darren Jackson, D-Wake, argued there are no workflow studies or data to support the reduction on the lower court, which now must also hear en banc appeals as a result of a law passed last December.

"The number of cases the court can hear will drop by 20 percent in two months, and we’ve seen nothing to say that’s what we are needed here," Jackson argued. "Nobody has asked for this as far as I can tell."

Burr and Stevens acknowledged they had not sought the court's opinion on the matter.

"There was no push by the courts to do this. I did not consult with the court," Burr said. "We are the policy-making body. This is a policy decision that we have to make."

The state Administrative Office of the Courts hasn't taken a position on the bill, spokeswoman Sharon Gladwell said.

But two groups of attorneys, the North Carolina Bar Association and the North Carolina Advocates for Justice, said they are against the proposal, arguing that the state's judicial system needs more resources, not less.

"The number of seats on the Court of Appeals has never been reduced in its history, and doing so at this time runs contrary to both the court’s increasing workload and common sense," Bill Powers, president of the Advocates for Justice, said in a statement. "The Court of Appeals needs and deserves more human resources to do its important work in a timely fashion, not less."

Republicans argued that the Democrats had increased the court size by three judges in 2000 in order to give outgoing Gov. Jim Hunt those appointments. But Democrats argued two wrongs don't make a right.

"What are we doing?" asked Rep. Billy Richardson, D-Cumberland. "This is insane. We have got to be better than this, folks. We are making substantial, substantial changes to the judicial branch of this government without any consideration or deliberation."

All Republicans present voted for the measure, as well as Rep. Bill Brisson, D-Bladen. All other Democrats voted against it.

Lawmakers say they should name some trial court judges

House Bill 240 would take away the governor's power to fill District Court vacancies until an election can be held, allowing legislators to vote on the judges instead.

Burr, the sponsor, argued that appointment by lawmakers would be a more transparent process.

"Currently, many of these appointments are filled in secret behind the iron fence of the governor’s mansion, with no involvement from the public," he said.

But Rep. Mickey Michaux, D-Durham, said he believes the change violates the constitution, which, he told the House, "specifically says that that appointment shall be made by the governor. That’s the law."

House Bill 241 would take away the governor's power to appoint special Superior Court judges and give that authority to state lawmakers as well.

Under current law, the governor appoints the special judges, and the legislature confirms them. The measure would take the governor out of the process entirely.

Jackson tried to amend the bill to put the appointments in the hands of the chief justice of the state Supreme Court, saying lawmakers shouldn't be making those choices. He recalled the vote by which lawmakers confirmed former Gov. Pat McCrory's budget chief Andrew Heath as a special Superior Court judge in the waning hours of McCrory's term. Heath had no court experience.

"The governor appointed somebody who was his budget director, and the legislature confirmed somebody who had absolutely no experience in Superior Court. He'd never tried a jury trial," Jackson reminded the House. "He will now be presiding over capital murder cases in the state of North Carolina, making life and death decisions. He was appointed and confirmed for a political reason, having never even picked a jury himself."

Rep. John Blust, R-Guilford, said other Superior Court judges have probably been elected without capital case experience.

"Is that really a disqualifying factor in your mind?" Blust asked Jackson.

"Absolutely, in my opinion," Jackson responded.

Both of the trial court measures passed largely along party lines, with a few Republicans voting no, including Blust and Reps. Chuck McGrady, R-Henderson, and Michael Speciale, R-Craven.

All three measures were sent to the Senate by special message, which is an expedited transfer.


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  • Theo Bishop Mar 10, 2017
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    It comes down to the Republicans want to stay in power and hurt the people of NC. instead of working together. We need to vote them out in the mid term elections.

  • Tom Harris Mar 9, 2017
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    It's apparent that Republicans in NC do not believe in democracy.