The Republican legislators leading an effort to reduce the size of the state Court of Appeals as three Republican judges near mandatory retirement age hit an unexpected obstacle on Monday.
Judge Doug McCullough, a Republican on the appellate bench who was expected to retire from the bench at the end of May, decided to retire early and give Gov. Roy Cooper the power to appoint his replacement.
The unexpected retirement announcement, and quick appointment of Democrat John Arrowood to the McCullough seat, came in a brief window of opportunity for Cooper in a power struggle between him and the Republican legislative leaders.
On Friday, Cooper vetoed the bill that would reduce the number of Appeals Court judges to 12 from the current 15 members.
The legislature could override Cooper’s veto this week. Lawmakers took no action on the bill Monday night.
But over the weekend, McCullough, a Republican from Atlantic Beach who has worked as a federal prosecutor, informed Cooper that he planned to step down from the bench 36 days before his forced retirement.
“I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on,” McCullough said Monday morning after the announcement.
McCullough’s letter to Cooper on Monday was brief.
The plan to decrease the size of the appeals court and route some of its work to the state Supreme Court comes at a time when there has been much debate about politicization of the courts.
The Republicans, with the addition of Arrowood, hold a 10 to five majority on the state appeals court, which hears cases in panels of three.
But at least one more sitting judge, Robert N. Hunter Jr., a Republican from Greensboro, will face mandatory retirement n March 2019.
Ann Marie Calabria, a Republican, will be 72 in October 2019, but her term expires in 2018. She has not stated whether she will seek re-election.
McCullough said Monday that a court not evenly divisible by three would have logistical problems, since the Court of Appeals decides cases in panels of three judges.
“It makes it administratively awkward, and we would end up deciding fewer cases,” McCullough said.
Republicans in the legislature have said the court should shrink to match what they have described as a reduced workload for the appeals court. McCullough said the statistical information the lawmakers have relied on is inaccurate and incomplete.
McCullough, while stressing that he was honored to serve on the bench, recalled a time when Gov. Jim Martin, a Republican, was in the executive office and the Democrats at the helm of the General Assembly “did not interfere with his power to make appointments to the judiciary.”
A spokeswoman for Sen. Phil Berger, the Republican at the helm of the state senate, was critical of Cooper’s appointment.
“After his nonstop rhetoric about ‘partisan politics having no place on the judges’ bench,’ Gov. Cooper needs to explain why he put his partisan allegiance above the voters by singlehandedly changing the party makeup of the Court of Appeals with a Democrat who was soundly rejected by them in 2014,” Amy Auth said in a statement mid- afternoon.
Arrowood was sworn in at 9:45 a.m. Monday to fill the year and a half remaining in the term that McCullough was elected to in 2010.
This is not Arrowood’s first time on the appellate court.
In 2007, Mike Easley, the Democrat in the governor’s office, appointed him to fill a vacant seat.
Arrowood campaigned for the seat in the 2008 election, but was unsuccessful in his election bid. Arrowood also was among a field of 19 candidates seeking a Court of Appeals seat in 2014. He was the second-highest vote-getter.
Arrowood, who is openly gay, specialized in employment and commercial law at the James, McElroy and Diehl firm in Charlotte until his resignation from the firm on Monday.
Cooper alerted the 60-year-old North Carolina native on Sunday of McCullough’s decision and his plans for appointment.
“Judge Arrowood was at the top of the list, so Judge Arrowood got a surprise phone call yesterday afternoon,” Cooper said Monday morning during a briefing with reporters.