NC Supreme Court withdraws fill-in justice rule

Posted December 9, 2016

North Carolina Supreme Court

— The North Carolina Supreme Court has withdrawn a rule that would have allowed it to appoint former members to hear cases in which there was the threat of a deadlock.

Justices adopted the new rule on Election Day as part of what court officials said was an effort to avoid the potential for 3-3 ties in cases when a sitting justice has to recuse himself or herself. In the case of ties, the lower court opinion that was appealed to the court is left in place.

Although ties are rare, they are not unheard of. The highest profile 3-3 split this year effectively struck down a state law that would have allowed Supreme Court justices to run in retention elections without facing opposition.

However, the effort to avoid such deadlocks drew criticism from a number of legal experts, who said the state constitution doesn't allow such substitutions. At the very least, experts suggested, the court would need to get approval for such a procedure from the General Assembly, although there could still be constitutional questions.

When asked by WRAL News to provide records related to the rule's development, its clerk and the seven sitting justices declined, claiming a broad exemption by citing the court's duty to "to ensure the effective administration of justice."

In an order signed Thursday by Clerk J. Bryan Boyd, the court withdrew the new rule "effective immediately," adding that it was "rescinded in its entirety."

A spokeswoman for the court did not explain why the rule was rescinded but did say, "The General Assembly may address this if it wishes."


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