On Election Day, North Carolinians voted on a justice for the state Supreme Court. By the end of the day, they had chosen Superior Court Judge Mike Morgan over incumbent Justice Bob Edmunds. But in the afternoon of that day, while North Carolinians were still at the polls, the Court issued a significant order. Invoking its authority to prescribe “rules of practice and procedure,” it adopted Rule 29.1.
Inserted between a technical rule on sessions of court and another on oral argument, the new rule deals with something entirely different: the choice of a replacement for a “recused or disqualified justice.” In other words, it addresses the situation when a justice “recuses,” that is, steps aside because of a possible conflict of interest, or is otherwise disqualified from participating in a decision. Since the authorized size of the Court is presently set at seven, the absence of one justice would leave the Court with six members. According to the new rule, “the Chief Justice may, when necessary to avoid the possibility of an evenly divided disposition, appoint a substitute justice who will participate in the consideration and decision of the matter.” The substitute justice is to be selected “using a neutral rotation process from a list of eligible retired justices maintained by the Supreme Court.”
Over the last 125 years, equal divisions of the justices have occurred from time to time. In the past few years, such splits have often been attributed to the different party affiliations of the justices. Until the new rule, the uniform practice has been for the Court to affirm the decision of the lower court, but leave it “without precedential value.” Most recently, when Justice Edmunds himself recused, the remaining justices divided equally on the question whether the General Assembly could provide for retention elections of sitting justices. Unable to agree, the justices left standing the decision of the lower court that such a change could not be made by statute, but only by constitutional amendment.
The new rule raises many questions, among them: If a justice recuses before a case is even heard, how is the Chief Justice to know that there is “the possibility of an evenly divided disposition”? If the equal division emerges at the conference of the justices after the hearing, must the case be re-argued so that the substitute justice can truly “participate in the consideration and decision of the matter”? If there is an equal division, must the Chief Justice appoint a substitute justice? The rule says only that the Chief Justice “may” appoint one. Of course, if the Chief Justice chooses not to appoint a substitute, it is in effect a choice to leave the lower court ruling (whatever it may be) standing.
What happens if it is the Chief Justice who recuses or is disqualified? Who, if anyone, would then make the appointment? Who is an “eligible retired justice” anyway? Is just being retired enough to make a justice “eligible”? Would a justice who had been defeated for reelection be eligible? Would a justice who reached the bench by gubernatorial appointment and then was defeated at the polls be eligible? What if such a justice had subsequently been elected to the Court of Appeals? Will the list be public knowledge? And what exactly is “a neutral rotation process”? Will the “eligible retired justices” be listed in alphabetical order, by age, by years in retirement, at random, or in some other manner? Will the party who finally loses after a substitute justice decides the case – because if the justices are equally divided, it will be the substitute who determines the outcome – be able to challenge the Chief Justice’s choice? Which justices will decide that?
Assuming one can work out answers to all these questions (and more), does the Court even have the authority to issue such an order? According to the North Carolina Constitution, “The Supreme Court shall consist of a Chief Justice and six Associate Justices, but the General Assembly may increase the number of Associate Justices to not more than eight.” And it’s the General Assembly that has the authority to provide by law “for the temporary recall of any retired Justice.” There is nothing in the Constitution about a “substitute justice” who gets to decide just one case. What the Constitution does say is that it is the “qualified voters” who elect the justices on Election Day.
John V. Orth is William Rand Kenan, Jr. Professor of Law, University of North Carolina at Chapel Hill.