The General Assembly is considering a bill that would, among other controversial measures, abolish the seats of 12 Special Superior Court judges.
These judges are appointed by the governor to five-year terms and are generally assigned by the chief justice to handle court in circumstances in which the numbers of the regular superior court judges are insufficient. They are often assigned by the chief justice to handle particularly complex or controversial cases, often based on their particular background and abilities.
Three of the judges – who are spared from the abolition by Senate Bill 10 – are designated by the chief justice to decide complex business cases as business court judges.
The judges holding the 12 seats that Senate Bill 10 would abolish all have one thing in common: They were appointed by previous governors, all of whom were Democrats.
The General Assembly’s move to rid our state of these 12 judges is problematic, both as a matter of constitutional law and as public policy. In the end, implementation of Senate Bill 10 will hurt future governors (as well as the current governor) and harm the North Carolina judicial system.
Starting with the constitutional particulars, the N.C. Constitution states that the “General Assembly may provide by general law for the selection or appointment of Special Superior Court Judges.” The Constitution specifically provides the exclusive methods for removal of any judge, including the Special Superior Court judges. First, a judge may be removed “for mental or physical incapacity” by a two-thirds vote of both houses of the General Assembly.
The Constitution goes on to state that “removal from office by the General Assembly for any other cause shall be by impeachment.” The Constitution also permits the General Assembly to prescribe a procedure in addition to impeachment for removal of a judge “for willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”
The Constitution does not provide for the removal of judges by the wholesale abolition of the seats they hold, and any attempt to do so violates the Constitution. Tellingly, there is no contention that any of the 12 – let alone all of them – has engaged in improper conduct that might give rise to removal for cause. As far as one can tell, the only issue is which governor appointed them.
Apart from the specific constitutional infirmities in Senate Bill 10, it also violates the general principles of N.C. and American constitutional law. Section 6 of Article One of the N.C. Constitution – the Declaration of Rights – is entitled “Separation of Powers” and states that the “legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other.”
That same principle is the primary foundation of the U.S. Constitution. A legislative body removing judges from office without cause flies in the face of that fundamental principle.
Beyond separation of powers, the attempted wholesale removal of judges from office violates the spirit of other basic underpinnings of our state and federal constitutional systems. Both the North Carolina and federal constitutions forbid ex post facto laws, which are retrospective laws designed to change the applicable rules in the middle of the game.
In this case, 12 judges received appointments for five-year terms of office, and the General Assembly is seeking to supersede those appointments retrospectively by abolishing the offices.
The singling out of a small group of judges also has attributes of constitutionally condemned bills of attainder in which individuals are punished at the hands of laws directed only at them.
Putting aside these constitutional problems, Senate Bill 10 is bad public policy. Removal of judges without cause is the sort of behavior one expects to see in countries where the Rule of Law doesn’t prevail.
The specific cases in which these 12 judges are assigned – generally complex and sometimes controversial – will have to have new judges assigned. That is pure judicial inefficiency.
Our new governor will find that his appointed Special Superior Court judges will be serving at the whims of the General Assembly based on future elections. And, it’s fair to ask, what sort of lawyer would want to serve as a Special Superior Court judge in a system where his or her seat is subject to immediate abolition by a political branch of the government?
Press Millen is a trial lawyer in the Raleigh office of Womble Carlyle Sandridge & Rice, PLLC.