A committee of a commission that North Carolina’s Supreme Court chief justice set up in 2015 to do a thorough review of the courts has issued a resolution urging the General Assembly to “tie the number of judges and justices on a given court to the workload of the relevant court.”
The statement was approved by the Public Trust and Confidence Committee of the N.C. Commission on the Administration of Law and Justice on Nov. 15. The issue came up after questions rose in the legal community and political circles about the possibility of the legislature using a special session called to tackle issues related to Hurricane Matthew and the Western North Carolina wildfires to add two justices to the state Supreme Court.
Rumors of such a possibility arose after Wake County Superior Court Judge Mike Morgan, a Democrat, unseated Justice Bob Edmunds on the state’s highest court, swinging the political balance on the seven-member panel to a Democratic majority.
Further fueling the speculation has been an unwillingness by the leaders of the state House of Representatives and Senate to speak out against the idea. Senate President Pro Tempore Phil Berger and House Speaker Tim Moore have said in interviews that there have been no discussions in the Republican caucus about the issue. Neither has said outright that they would oppose such a measure.
In response, Sen. Jeff Jackson, a Democrat from Mecklenburg County, posted a comment Dec. 3 on his Facebook page. “If your neighbor asks if you’re going to burn down his house, the correct answer is, “No” – not, ‘I haven’t considered it.’ Their unwillingness to issue a simple denial in the face of intense public interest is disrespectful at best, prelude at worst.”
When asked for a response Wednesday, Berger’s chief of staff Jim Blaine returned a message without answering the question.
The North Carolina Constitution states that 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 eight. If two seats were added, it falls on the governor to appoint the justices who fill the seats until the next election. To remain in the seats, those justices then would have to stand for election, and that would not be until 2018.
If the legislators approved the additions during their special session, Gov. Pat McCrory, who conceded victory to his Democratic challenger Roy Cooper this week, could select the justices and swing the balance of the court back in favor of Republicans.
In urging the General Assembly to make workloads and not political considerations the basis for expansion, the Public Trust and Confidence Committee stated “that any other consideration for numbers of judges and justices threatens public trust and confidence.”
The committee adopted a second resolution urging the full commission to “issue a statement opposing the expansion of our Supreme Court” unless the state Administrative Office of the Courts “requests the additional justices to meet workload demands.”
The N.C. Advocates for Justice, a lobbying organization for trial lawyers, issued a statement Wednesday urging legislative leaders to state they will not use the special legislative session next week to expand the state Supreme Court.
The organization stated that in 2015 and 2016, Supreme Court justices have written an average of six opinions per justice per year. In contrast, the organization pointed out, each judge on the state Court of Appeals writes more than 100 opinions per year. In the 1950s, when the state Constitution was amended to allow up to eight associate justices and a chief justice, each Supreme Court justice averaged writing 50 opinions per year, according to the trial lawyers organization.
“Important changes in the judicial system demand careful review, with broad public participation,” the organization said in its statement. “Expansion of the court should only occur after a request by the Chief Justice and the Administrative Office of the Courts based on solid empirical data, followed by full committee hearings and debate, not rushed through a special session that was convened to help victims of natural disasters.”