Shrinking of NC appeals court becomes law as House, Senate override Cooper’s veto

The state House and Senate voted Wednesday to override Gov. Roy Cooper’s veto of a bill that would reduce the number of appeals court judges that the Democratic governor can replace when they retire.

The bill became law with the Senate’s override vote Wednesday night, intensifying an ongoing power struggle with the Republican-controlled General Assembly.

House Bill 239 reduces the size of the Court of Appeals to 12 from 15 by not replacing the next three judges who retire during their terms. The three judges who were in line to reach mandatory retirement age during Cooper’s term in office were Republicans. One of those judges, Doug McCullough, announced his retirement on Monday and Cooper immediately replaced him with John Arrowood, a Democrat. 　

House Republicans passed the bill by a vote of 73-44 Wednesday afternoon. The Senate followed Wednesday night, voting 34-15 to override Cooper’s veto without any debate.

Cooper’s spokesman blasted the move Wednesday night. “Republican legislators have crossed so far over the line that a judge from their own party stepped down this week to prevent Republicans from manipulating the integrity of the Court of Appeals,” spokesman Ford Porter said. “That says everything you need to know about how harmful this legislation is. Unnecessarily reducing the Court of Appeals – which a chorus of bipartisan former judges have condemned – does nothing but inject partisanship into our courts and delay justice for North Carolinians.”

Bill sponsors say the appeals court workload has decreased over the past decade, and so 15 judges aren’t needed. The court was expanded in 2000.

Rep. Justin Burr, a Republican from Albemarle, disputed opponents’ claim that losing three judges would hobble the court, which currently meets in five panels of three. He said the most recent calendar shows all five panels were able to meet by shuffling judges to fill absences.

“It moves us back in the right direction,” Burr said. “We only need 12 judges, the caseload shows that. It’s good policy and good use of the taxpayers’ money.”

Democrats say the workload data is faulty, and note that four retired state Supreme Court chief justices along with McCullough and appeals court Judge Donna Stroud have come out in opposition to the bill.

“This phantom reduction in workload has been thoroughly discredited at every turn,” said Rep. Joe John, a Democrat from Raleigh and former appeals court judge. He said the argument for the bill was based on “faulty math and poor public policy.”

John said data actually shows the workload has increased.

Former district court judge Marcia Morey, a Democratic representative from Durham, criticized a provision in the bill that would allow parental rights cases to skip the appeals court and go directly to the Supreme Court, adding complex cases with extensive paperwork to the high court’s docket.

Morey contrasted the bill with other legislation that would allow district court judges to serve on panels of judges deciding constitutional issues.

“We’re totally mixing up the structure of our court,” she said.

On Tuesday, the legislature overrode another Cooper veto, this one on a bill that merges the state elections and ethics boards and deprives the governor of a free hand in making appointments to the new board.

In response, Cooper on Wednesday filed a new lawsuit – asking the three-judge panel that overturned a similar plan earlier this year to block the new law.

“This General Assembly’s actions fail to respect fundamental principles of representative government and the basic guarantees of the North Carolina Constitution, thus requiring the Governor to again enforce his constitutional rights – and protect the constitutional powers allocated to the Executive Branch of State Government by the people – through this lawsuit,” the motion for the judges to intervene states.

Berger issued a response to the new legal action on Wednesday night:

“Even though the legislature disagreed with the three-judge panel’s ruling, we respected the court and fully complied with their order by ensuring the governor will make all appointments to the bipartisan ethics and elections board,” Berger said. “It is outrageous for Gov. Cooper to now ask the very same judges to block the modified board that met their requirements to the letter, simply because he wants total control of ethics and elections oversight.

“It would be a disgrace if these judges allowed themselves to become the governor’s political pawns and failed to respect the legislature’s constitutional authority to make laws,” he said.

Staff writer Anne Blythe contributed to this report.

This story was originally published April 26, 2017 at 3:28 PM with the headline "Shrinking of NC appeals court becomes law as House, Senate override Cooper’s veto."