Move to blunt legal challenges may bring more

Editorial by News and Observer, August 18, 2014.

North Carolina’s Republican leadership has a new approach to the law: Muzzle the judges.

The new state budget contains a provision that bars individual Superior Court judges from hearing constitutional challenges to state laws. Starting in September, all such cases will be heard by a panel of three judges appointed by the chief justice of the state Supreme Court.

It’s an understandable reaction. Several of the Republican-led legislature’s prominent measures – including ending teacher tenure and creating vouchers for private school tuition – have been blocked by Superior Court judges. The solution for Republicans isn’t to make the bills comply with the constitution. Rather, they’ve moved to make judges more compliant toward the General Assembly.

As The News & Observer’s Craig Jarvis reported Sunday, Republicans say the change will keep activists from “judge shopping” for a Superior Court judge likely to agree with their objections to a state law. But this change is judge shopping to the ultimate degree. Republican judges control the state Supreme Court thanks to a flood of outside money that has thoroughly politicized the once low-profile elections.

‘Fixing’ the wrong problem

With this law, the judge shopping would be shifted to the defendants. The head of a Republican-dominated court would be more likely to appoint judges less inclined to overturn laws passed by a Republican-led legislature.

This law addresses the wrong end of the problem. It’s not that a given Superior Court judge can’t properly interpret the law. It’s that Republican legislators can’t properly make laws. Instead of making laws, they make points (pushing Amendment One) or settle scores (barring payroll deductions for the N.C. Association of Educators dues). As a result, the legislature’s laws have sparked constitutional challenges involving voting rights, abortion rights and civil rights.

One reason so many of this legislature’s laws are legally flawed is that the Republican leadership has no respect for the lawmaking process. The Democratic minority is entirely shut out of the formation of laws. Some measures are run through the process without public hearings. If Republicans would invite more comment, suggestions and objections from Democrats and the public, the unconstitutionality of some bills would be exposed before they triggered court challenges.

Particularly suspect provisions

This attempt to usurp authority from the judicial branch is a case in point. Requiring a three-judge panel to hear constitutional challenges is something not done in any other state. Before embarking on such an experiment, the legislature would have done well to consider objections from the North Carolina 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.”

Fortunately, this law is so bad it is unlikely to be the law for long. In trying to blunt constitutional challenges to their handiwork, Republican lawmakers have invited another.

The law has two provisions that are particularly suspect. One is a requirement that appeals go directly to the Supreme Court. That scrambles the usual appeals route and clearly deprives plaintiffs of their rights to the full appeals process. A second provision automatically delays a ruling against the state until the case is ultimately decided. That means no more lower court suspensions of laws that appear to be unconstitutional.

Like the rest of the poorly vetted and recklessly approved legislation that has become this General Assembly’s signature, this law is likely to be found illegal. But in the meantime, Republican lawmakers may feel even more entitled to disregard the objections and the rights of those with whom they disagree.