Lawmakers OK slimmed-down appeals court

Posted April 11, 2017 5:10 p.m. EDT
Updated July 13, 2018 1:45 p.m. EDT

— Lawmakers gave final approval Tuesday to legislation cutting the state Court of Appeals from 15 judges to 12, setting the stage for another fight with Gov. Roy Cooper.

The reductions in size would occur as judges retire, with the first coming this spring and two more expected in 2019. All three retiring judges, Douglas McCullough, Robert Hunter and Ann Marie Calabria, are Republicans.

Under current law, Cooper would appoint replacements to serve the remainders of their terms. With the change, Cooper will not be able to make any appointments.

Because the court hears cases in three-judge panels, the first retirement will take one of the five panels away, immediately changing the work flow on the court.

Sen. Terry Van Duyn, D-Buncombe, said the Court of Appeals was expanded from 12 to 15 judges in 2000 based on a request from the judiciary, but there was no such request – nor any sort of workload study – as the basis of House Bill 239. Cooper's defeat of Republican Gov. Pat McCrory in November appears to be the sole motivation for the current legislation, Van Duyn said.

Sen. Warren Daniel, R-Burke, countered by noting that figures from the Administrative Office of the Courts show the workload of the Court of Appeals has dropped about 20 percent since it peaked in 2011-12.

Rep. Joe John, D-Wake, said during the House debate on the proposal that figures have been misstated to support House Bill 239, and the former judge said the plan to cut the size of the court saddens him.

Several House Democrats complained that the bill moves all actions regarding the termination of parental rights from the Court of Appeals to the state Supreme Court, which meets less often than the lower appellate court.

The proposal was approved along party lines, 30-13 in the Senate and 69-43 in the House.

Sadie Weiner, a spokeswoman for Cooper, called the move the "latest power-grab" by Republican lawmakers, "aimed at exerting partisan influence over the judicial branch and laying the groundwork for future court-packing."

Cooper has fought other efforts to undercut his appointment authority, winning a legal challenge last month over a legislative cut to the number of at-will employees in his administration and his ability to name members of the State Board of Elections. Lawmakers have revised their proposed changes to elections oversight in response to judges' concerns.