A new rule that allows the N.C. Supreme Court to call back retired justices to serve on a case-by-case basis to avoid potential deadlocks has flummoxed the legal community since it was put in place on Election Day.
How that rule came to be, and why it was added to the high court’s rule book when it was, could remain a mystery to all except those who crafted the change. What is known is that it didn’t follow the typical process for changing rules.
Officials at the state Administrative Office of the Courts contend that memoranda, documents and correspondence related to “the Supreme Court’s performance of its constitutional duty to ensure the effective administration of justice,” including the order, are not subject to public records law.
The amendment to the rules of appellate procedures was signed and entered by J. Bryan Boyd, clerk of the state Supreme Court, at 2:30 p.m. on Nov. 8, before the election results were in.
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Under the new rule, when a justice has recused himself or herself from a case or been disqualified from hearing one, the chief justice may, “when necessary to avoid the possibility of an evenly divided disposition,” call in a retired justice to participate in consideration and a ruling in the matter.
The substitute justice will “be selected using a neutral rotation process from a list of eligible retired justices maintained by the Supreme Court.”
John Orth, a UNC-Chapel Hill law professor, questions the constitutionality of such a change. In an op-ed piece published in The News & Observer last week, he questioned how the chief justice would know where the other justices stood on a case until after attorneys made their arguments in open court and the justices had retreated behind closed doors together and started their deliberations.
The state’s high court is set up so the discussions among the justices are done out of public earshot. Once they have decided the case, a justice from the majority writes the opinion attached to the ruling and that becomes public. Those in the minority sometimes choose to add their viewpoints for the public to read and analyze.
Ties are rare, but there have been a few high-profile ones in recent years. Questions about the legality of North Carolina’s lottery left the state’s highest court divided three to three after Mark Martin, who was an associate justice then, recused himself. Martin, a Republican, is now the chief justice.
Earlier this year, the justices deadlocked 3-3 on whether the legislative attempt to change how justices stand for re-election violated the state constitution. Justice Bob Edmunds, who was the only justice up for re-election in 2016, recused himself, and the split decision meant the lower court ruling overturning the law stood. Edmunds lost to Wake County Superior Court Judge Mike Morgan in the Nov. 8 election, shifting the 7-member court back to a 4-3 Democrat majority after Morgan is sworn in in January.
Bob Orr, a former state Supreme Court justice, said Monday that he thought the rule change was well-intentioned and likely adopted to avoid circumstances tied to election cases that might need to be solved quickly. As an example, Orr cited the challenge by the state NAACP to extend the voter registration deadline for 35 counties hit hardest by Hurricane Matthew. Had Wake County Judge Donald Stephens not agreed to extend the period by five days, or had someone wanted to challenge the ruling, the case could have gone to the state Supreme Court.
Orr said in such a situation, he would have expected a recusal from Edmunds, who was running for election and could have had a conflict of interest in the outcome of the case.
“The court had no vehicle or mechanism for a seventh justice,” Orr said.
Orr acknowledged that the rule change did not follow traditional procedure.
Typically, Orr said, the court seeks comments on potential rule changes, often seeking the wisdom and guidance of the N.C. Bar Association’s Appellate Rules Committee. That did not happen in this case, according to Orr, leaving many in the legal community and the public with only speculation about why the change was made.
“There’s a certain aspect of the court’s work that needs to be not public,” Orr said. “If a rule goes into effect, you’re not privy to the internal discussions.”
Sharon Gladwell, a courts spokeswoman, said Monday about the new rule: “Historically, the Supreme Court has faced situations where the members of the court have been equally divided and therefore unable to authoritatively resolve issues of importance to the people and the law of the state. The court has now adopted a rule to prevent these situations.”
But Michael Gerhardt, a UNC-Chapel Hill law professor, has questions similar to Orth, his colleague at UNC.
Gerhardt questions whether the chief justice has the constitutional authority to call in a retired justice. Voters elect justices knowing the makeup of the panel.
There is no explicit provision in the constitution for temporary appointments due to conflicts of interest, but the constitution allows the General Assembly to set rules for the use of retired Supreme Court justices. If a justice were “temporarily unable to perform all of the duties of his office,” according to state law, a former justice could be tapped to serve. But that law typically has been viewed as one that applies to justices unable to serve for extended periods because of illness or injury.
Not only does the rule change raise questions about which retired justices would be on the list of those available to fill in on a case-by-case basis, it leaves ambiguity about whether all retired justices – those who have passed the mandatory retirement age of 72 or those who are on other elected bodies – could be in the rotation.
“It seems problematic under the state constitution,” Gerhardt said.