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Leaked document shows big changes could be underway at GOP-majority NC Supreme Court

Days after Republicans flipped the NC Supreme Court majority, the court started discussing new rules that critics now call a power grab, according to a document obtained by WRAL News. The apparent effort comes as the new GOP court has also voted to revisit recent decisions in voting rights cases that favored progressive groups.

Posted Updated

By
Will Doran
, WRAL state government reporter

The North Carolina Supreme Court is quietly working on a pair of new policies that could radically weaken the state’s appellate courts — a move critics view as a possible power grab by the high court’s new Republican majority. Supporters say it would make the courts more efficient.

One of the policies would give the Supreme Court the ability the decide that certain opinions issued by the state Court of Appeals shouldn’t be used as precedent, according to notes from a North Carolina Bar Association meeting last month. The notes were taken by a meeting attendee and obtained by WRAL News. The substance of the notes were confirmed by people familiar with the proposals.

The other change, as detailed in the notes, would give the Supreme Court more power over which cases from the Court of Appeals are allowed to make their way to the Supreme Court. The seven-justice court has five Republicans and is led by Chief Justice Paul Newby.

A spokesman for the courts system said he wasn’t familiar with the proposed rules. Newby didn’t respond to a request for an interview.

The Court of Appeals hears cases in three-judge panels, and state law has long said that if someone loses in a 2-1 ruling, they can cite the dissent in their favor to be guaranteed a hearing in front of the Supreme Court. The proposals would get rid of that rule.

Bob Edmunds, a Republican former state Supreme Court justice and Court of Appeals judge, said there are pros and cons to the proposals. Among the upsides, he said: It could increase efficiency and give the Supreme Court full control over what cases it takes or doesn’t take — similar to how the U.S. Supreme Court already operates. “I see it as more of an administrative issue,” Edmunds said.

"That automatic right of appeal can be both a blessing and a curse,” he said. “If you're representing someone and you think you are right, and lose in a 2-1 decision, the chance to take it to the Supreme Court is welcome. But if you're in a tough case, and you want the case to get resolved, going up to the Supreme Court is a big expense."

Others see the proposals as something more nefarious.

“It's about concentrating power in the office of the chief justice, and it's trying to silence some of the dissents that will be coming from judges who are Democrats,” state Rep. Marcia Morey, a Durham Democrat and former judge, who is familiar with the proposed changes, told WRAL News. “The whole politicization of the courts is just a disaster.”

Judges in North Carolina are elected, and after the 2022 elections Republicans regained control of the Supreme Court for the first time in six years. The new Republican majority has been aggressive in flexing its power, having already ruled to re-do two voting rights cases — on gerrymandering and voter identification — that the Republican-led legislature lost late last year, when the court had a Democratic majority.

The rulings in those cases, as well as the decision to undo the rulings and rehear the cases, came down along party lines — like many of the court’s biggest cases over the years.

If the court continues re-hearing past cases that Republican justices disagreed with at the time, it could open up a number of issues that were previously thought to have been resolved. And while that would give the court more power to undo past precedents, the two proposed policy changes described in the document would also give the court more power over future legal precedents.

The change to whether appeals court rulings can be cited as precedent is one the Supreme Court has to power to change on its own. But the change that would diminish the power of dissents at the appeals court would require a change in state law.

Morey said she hasn’t heard of efforts yet to file the necessary bill, but plans to fight it if the proposals move forward. In addition to opposing the policies, she said, the lack of transparency also concerns her.

"I don’t think it’s normal at all,” she said. I think these are two dramatic changes to the administration of the appellate courts. It's a horrible way to make these changes.”

Quiet effort

Supreme Court Justice Anita Earls, one of the court’s two remaining Democrats,spoke at the closed-door meeting about the proposed changes last month. She confirmed that the notes obtained by WRAL portrayed an accurate description of what she said.

It was unclear late Sunday whether the proposals have been amended since that Jan. 19 bar association meeting meeting.

According to the meeting notes, Earls told leaders of the North Carolina Bar Association — a group that promotes professional standards and reviews such policies — that the proposed rule changes weren't being sent through the association’s Appellate Rules Committee. That drew the objection of at least one Supreme Court justice, according to the meeting notes.

Such reviews are customary. They give judges and lawyers a forum to discuss proposed changes and the best way to word them or implement them.

In an interview, Earls declined to state her opinion of the proposed changes. She also declined to comment on the process. “I’m a vice president on the [association’s] board of governors,” she said, explaining why she gave the presentation. “That’s my role, to be a liaison between the court and the bar association.”

Additional interactions have been interpreted as a broader effort to keep the proposed changes under wraps, according to several people with knowledge of the matter.

They described a recent meeting during which a Republican Supreme Court justice told Appellate Rules Committee members to stop talking about the possible changes when they came up in conversation.

Meanwhile, Earls told attendees of the Bar Association meeting that members of the Supreme Court had been keeping the proposals secret from judges on the Court of Appeals, who would be most affected, notes of the meeting show.

Donna Stroud, a Republican who is the chief judge of the Court of Appeals, declined to speak about the proposed changes Friday. “At this point, I don’t know enough about it to comment,” she said.

Avoiding public input?

Robin Hudson, a recently retired state Supreme Court justice who sits on the Appellate Rules Committee, confirmed what the January meeting notes show Earls to have said: The current Supreme Court has not formally approached the committee about the change to the power of dissents, or the change over which cases can be cited as precedent.

While there’s no requirement for these policy changes to go through the Appellate Rules Committee, Hudson said, “these types of changes have typically been discussed at length by the commission, by the public, at length. The thinking has typically been that more discussion is better."

It is possible that the court may still eventually vet the proposals publicly.

Hudson, a Democrat, said the proposals represent huge potential changes that the public should know about.

"North Carolina is one of few states that have that rule,” she said, referring to how a dissent will guarantee that a case can go to the Supreme Court. “But a lot of judges and lawyers feel strongly about it because, they feel, it gives a stronger voice to the people.”

Hudson sits on a subcommittee focused specifically on dissent rules. At a recent meeting, when subcommittee members started talking about the proposals, Republican Supreme Court Justice Tamara Barringer asked them to stop talking about it.

“Other members of the committee weighed in that, ‘Wow, this sounds like a pretty big change,’” Hudson said, adding that following that comment, “There was a suggestion from [Barringer], who said we maybe shouldn't be talking about this at all, because it had come out in an improper way."

Barringer didn’t respond to a request for comment sent through a courts system spokesperson.

Power over precedent

When appellate courts rule on a case, there are two basic levels an opinion can take: published or unpublished.

Published cases are those which future judges must respect as binding precedent. For unpublished cases, lawyers can cite them in their arguments, but they don’t hold nearly the same weight.

The power to unpublish Court of Appeals opinions would give the Supreme Court majority an incredible amount of authority to shape the state’s legal precedent on all imaginable issues, from election law and political cases to contract law, tax law, criminal law and more.

The Court of Appeals hears so many cases every year that it would be impossible for the Supreme Court to review all of them, even if the justices wanted to. So unpublishing opinions from the Court of Appeals would let the Supreme Court influence precedent, without actually hearing the case.

Hudson said a similar idea came up when she was new on the Supreme Court in 2007. The court debated it through the Appellate Rules Committee for two years, she said, before ultimately deciding it wasn’t the right decision.

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