A trio of bills moving through the state House would limit the governor’s ability to appoint judges, reflecting a pattern that has pitted Democratic Gov. Roy Cooper against Republican legislators since his election last year.
A House judiciary committee approved the bills Wednesday on votes of 7-6, split along party lines with Republicans in support and Democrats opposed. The proposals are scheduled go to the full House on Thursday.
One bill would reduce the size of the state Court of Appeals from 15 to 12 judges, which would keep Cooper from filling upcoming vacancies. The others would allow the legislature rather than the governor to appoint special superior court judges who fill in around the state and also to fill vacancies on district courts.
All three are sponsored by Rep. Justin Burr, a Republican from Albemarle, along with others.
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Democrats on the committee questioned Burr’s motivation, pointing out the proposals would prevent Cooper from making appointments. Burr, who is a bail bondsman, said the bills reflect longstanding efforts to reclaim powers alloted by the state Constitution.
I’ve always advocated for pushing in this direction.
Rep. Justin Burr
“I’ve always advocated for pushing in this direction,” Burr told the committee. “I pushed under (Gov. Pat) McCrory and wasn’t successful. … This is something I’ve looked at for several years.”
He also said appointments made by the General Assembly are more transparent than those chosen by the governor without a public airing. Burr recently questioned whether Cooper could choose the best judge for his conservative district in Stanly and Montgomery counties. “The governor overwhelmingly lost in my community and yet he’s going to get to pick my District Court judges, which does not fall in line with what my community would want.”
Of the three proposals, House Bill 239, reducing the size of the appeals court, is the most controversial and has the support of legislative leaders including House Rules Chairman David Lewis and Speaker Pro Tem Sarah Stevens.
Stevens told the committee the appeals court judges’ workload has been dropping by about 200 cases a year, and so 15 members are no longer needed. She noted that some of the most complex cases already go directly from the trial court to the state Supreme Court, which spares the lower appeals court from that work.
Trial attorney advocates challenge the caseload data, which Stevens said comes from the Administrative Office of the Courts. Former appeals court judge Martha Geer said the bill’s sponsors didn’t ask the court what it thought.
“They’re trying to say the court is not overloaded, and it is,” Geer said after the meeting.
They’re trying to say the court is not overloaded, and it is.
Former judge Martha Geer
Geer, a registered Democrat who stepped down last year, said a backlog has been gradually cleared over the past 17 years after three judges were added to the court, but cutting back on the number of judges would lead to new backlogs.
The proposal to shrink the appeals court comes as three Republican members of the court approach mandatory retirement. State law in North Carolina requires judges to retire at 72.
Douglas McCullough, a Republican whose term does not expire until 2018, must retire by May 28 of this year. Republicans Robert N. Hunter and Ann Marie Calabria also would face mandatory retirement while Cooper is in the governor's office.
Hunter could not serve beyond March 30, 2019, and Calabria, whose term expires in 2018, could serve only part of the following year if re-elected. Her mandatory retirement date is Oct. 31, 2019.
Under existing state law, Cooper would appoint the judges to serve in the vacant seats. But shrinking the court would take that power from the Democrat.
Geer said once McCullough retires, the court will not have enough judges to hold five three-judge panels, and will have to cut back to four. That will add to delays, she said.
A recent review of the state appeals court found that each judge writes more than 100 opinions per year. The number was shared late last year among political talk about expanding the state Supreme Court by two seats, which never came to pass.
Democrat Mike Morgan, a former Wake County judge, won the only Supreme Court seat up for grabs in November, an election that shifted the political balance of the court to majority Democrat from a 4-3 Republican majority.
The state Court of Appeals was created in 1967 with six members. The legislature added three more members in 1969. Eight years later, the size of the court increased to 12 judges, and in 2000, that number was increased again to 15.
In the 2015 calendar year, the N.C. Court of Appeals heard 1,417 appeals and 895 petitions, and 3,608 motions were filed. During the same period the court disposed of 1,174 appeals and 4,111 petitions and motions.
Cooper has sued to block a law the Republican-controlled legislature passed in December after McCrory lost re-election that would take away some of his authority to pick Cabinet members, control the majority of appointments to the Board of Elections and other provisions. A three-judge Superior Court panel heard arguments in that case Tuesday, and has not yet ruled.
House members have proposed removing Cooper’s authority to pick trustees at some community colleges.
Trio of judicial bills
▪ Under House Bill 239, each of three positions on the Court of Appeals would be eliminated when an incumbent’s seat becomes vacant, for whatever reason. It would also allow appeals of cases designated as class actions to go directly to the state Supreme Court.
▪ House Bill 240 would give the General Assembly the authority to fill district court vacancies. If there is a vacancy when the legislature is not in session, the speaker of the House and the president pro tem of the Senate would submit a nomination to the governor, who would be required to appoint that person within 10 days, or the appointment becomes automatic. Local bar associations could submit five names for non-binding consideration.
▪ House Bill 241 would give the legislature the authority to appoint special or emergency superior court judges when there is a vacancy. Special superior court judges travel the state to preside where needed. Their terms would be for five years.