3-judge panel could shake up courts

by Craig Jarvis, News and Observer, August 16, 2014

After passing laws imposing new conditions on abortions and elections, taking away teacher tenure and providing vouchers for private school tuition, Republican state legislators have seen those policies stymied in state and federal courtrooms.

So they have passed another law, this one making those kinds of lawsuits less likely to succeed when filed in state court. Beginning in September, all constitutional challenges to laws will be heard by three-judge trial court panels appointed by the chief justice of the state Supreme Court.

The move takes those cases out of the hands of individual Superior Court judges and sends them to be heard in Wake County, where the panels of judges from across the state will assemble when needed.

The motivation is to prevent plaintiffs from shopping for sympathetic judges who can, through just one judge’s opinion, at least temporarily halt the will of the majority of legislators and the governor.

It is also rife with legal and practical uncertainties. It has been not done in any other state.

"It’s extremely disturbing," said Catharine Arrowood, president of the N.C. Bar Association, the 20,000-member professional organization for lawyers, which opposes the new law.

General Assembly leaders have been bruised by the string of federal court losses, which were followed by a trio of setbacks in state court.

In February, Wake County Superior Court Judge Robert Hobgood temporarily halted a program that provides vouchers to pay for private school tuition from a fund the legislature had set aside last year. The appeals court refused to lift his injunction, but in May the state Supreme Court did.

That same month, Special Superior Court Judge Richard Doughton issued a preliminary injunction relieving school systems in Guilford and Durham counties from having to offer raises to teachers who give up tenure.

A week later, Hobgood ruled in a similar lawsuit affecting all public schools in the state that the legislature’s 2013 law ending teacher tenure was unconstitutional, and he blocked it from taking effect.

‘Judicial activism’

Incensed, Senate leader Phil Berger called Hobgood’s tenure ruling “a classic case of judicial activism” and said it would be appealed. Complaints about irksome judicial rulings escalated among Republican legislators in the state Senate as the short session began in May.

“It got talked about a lot amongst us,” said Sen. Buck Newton of Wilson, “ways we could improve the efficiency of the court system, concerns we had about venue shopping, wanting to ensure the stability of the judicial process, balancing that with the democratic process of lawmaking.”

Senate leadership liked the idea so much that provisions establishing the three-judge system were written into four different bills, increasing its chances of passing. It ultimately passed as part of the budget bill and was signed into law Aug. 7 by Gov. Pat McCrory.

Berger told The Associated Press in May that he thought the concept of three judges was preferable to letting those who file lawsuits pick their own judge. He also pointed out that in 2003, the General Assembly, then controlled by Democrats, passed a law setting up three-judge panels to hear redistricting lawsuits.

One person who had been stirring up that conversation for quite awhile was Francis X. De Luca, a longtime Republican political consultant and now president of the limited-government Civitas Institute think tank.

“It had always bugged me that a local judge, maybe not even elected, could just stop in its tracks an entire state law that had been approved by both bodies and signed by the governor,” he said.

Election-law violations are prosecuted in Wake County, he noted, and challenges to legislative and congressional redistricting maps are heard by a three-judge panel.

“That way you don’t get somebody in the smallest county in the state who finds a judge they’re pretty sure will side with them and declare it unconstitutional,” De Luca said. “You’d have to think hard to remember a time when we had this number of laws declared unconstitutional in this quick a time.

“Maybe some were deserved, in which case I’m assuming we’ll get Superior Court judges appointed by the chief justice who will not just rubber stamp the laws.”

Opposition from courts

The task of steering the three-judge panel concept through the legislature fell to Newton, a lawyer and chairman of the budget committee dealing with justice and public safety issues. He said preventing judge-shopping isn’t just a conservative cause.

“Venue-shopping is also a concern for the judiciary,” he said. “It undercuts the credibility and legitimacy of the judiciary if you have that perception of venue-shopping, whether it’s true or not whether a judge is biased one way or another on any given case. We wanted to do something that would help with that process, also help with the efficiency of having these matters that are challenged heard in a consistent method for that.”

Democrats and trial lawyers had concerns about the provision as the bills progressed. Newton said many of their concerns were addressed, leading to at least one improvement where it was rewritten to prevent parties from raising a constitutional issue at the last minute rather than at the outset of a case.

Newton said opponents’ points were fully considered, including the claim that the idea hadn’t been fully thought out and might not even be workable.

“We think it will create efficiencies and is a good, common-sense way to streamline the process,” Newton said. “If it seems to create problems, we will revisit.”

Problems are certain, according to the bar association and the state office that runs the court system.

“We believe this concept should have been given additional review and consideration from appropriate stakeholders,” said Sharon Gladwell, spokeswoman for the state Administrative Office of the Courts. “We have both legal and practical concerns with this provision.”

She said it isn’t known whether the three-judge panel system itself is constitutional, adding that it is a dramatic change from the way the state’s trial courts have always been run.

Requiring judges to travel to Raleigh from around the state – and to support the proceedings when they’re here – will be costly to an already overburdened system, she said.

The bar fights back

The bar association only occasionally takes a stand on proposed legislation, but it opposed this law.

“This really takes these disputes out of the communities in which they arise and plucks them down in a special situation with a group of special judges,” said Arrowood, the association president. “It doesn’t seem like it has the right ring of fairness.

“The public is going to perceive this is some kind of special court that limits their ability to challenge legislative acts. We don’t want the public thinking judges are in any way not impartial or not fair.”

Arrowood said constitutional issues come up all the time between private parties, and this system would unnecessarily create separate systems to handle them. Unlike in business court or family law, where it makes sense for judges with expertise in those areas to handle only those cases, constitutional issues are familiar to every judge, she said.

Rather than having whichever judge is available to hear a lawsuit, as it has always been done, assigning hand-picked judges to the case could undermine public confidence that the system is free of bias, she said.

“I fear this law is going to create a very different perception,” she said, affecting “probably the most critical cases a judge will decide.”

Two other provisions in the new law are also controversial.

A requirement that appeals go directly to the Supreme Court undermines the current system in which the appellate court filters out most of the cases so that only the most important ones end up on the highest court’s docket, Arrowood said. Only a limited number of cases can be heard, she said, and that restricts citizens’ right to appeal.

Another provision imposes an automatic delay of a ruling that prevents the state from enforcing a law until it can be resolved – a significant departure from current law. That could be unconstitutional itself, Arrowood said.

“You could have a statute requiring businesses to do certain things and a court says that’s unconstitutional, then you have to operate under the burden of the statute for years to appeal it,” she said. “Who pays for the damages?”

A rare practice

No other state has set up a system like the one that is going into effect in North Carolina. William Raftery, an analyst with the National Center for State Courts, says a handful of states have used panels of three for rare and specific purposes but not for constitutional challenges. Only three or four states have explored using it as a way of addressing venue-shopping, he said.

“It hasn’t been widespread,” he said. “It’s just bubbling up.”

In North Carolina, the concept is part of a broader challenge to the state’s court system, which some think is an assault and others contend is a search for efficiencies amid dwindling resources. All agree that the current court system in North Carolina is woefully short of funding for even the most basic of functions.

The legislature cut about $1 million from the Administrative Office of the Courts’ outdated technology division this year, in one of the few states that doesn’t have electronic filing on a widespread basis.

Newton says he is highly concerned about the lack of resources, acknowledging “the system has been forced to bear a large share of cuts.” He said finding new efficiencies is part of the solution.

Arrowood worries the three-judge panels will only add to the financial strain.

“I’m constantly frustrated with the courts being treated like they are your local permitting agency or something,” Arrowood said. “This is the third branch of government. It is part of a three-part balance in our constitution. If it doesn’t function properly, our democracy doesn’t function.”

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