North Carolina Republican legislators unhappy that trial judges keep striking down laws they passed now want the rules of the game changed for future similar litigation. Democrats say their GOP colleagues are just sore losers after passing unconstitutional legislation.
It's a repeat of arguments from a decade ago when Democrats held most of the political power in Raleigh that may end with the same result.
A provision deep within the 275-page state Senate budget approved over the weekend requires three-judge panels to decide lawsuits in state courts in which plaintiffs seek laws of the General Assembly declared inherently unconstitutional. Any appeals would go directly to the state Supreme Court.
The provision comes after rulings this year from the same Superior Court judge in separate cases that blocked or struck down Republican education laws passed in 2013.
Sen. Buck Newton, R-Wilson, said the panel concept would "make sure that we're not having the will of the people thwarted by 'venue shopping,'" a phrase referring to plaintiffs filing lawsuits in courts where they believe they're more likely to locate a more sympathetic judge.
The chief justice would pick a Superior Court judge from each of three regions in the state to promote diversity and fairness, supporters say. The panels would hear cases and rule in Wake County court.
"Isn't that better than having the litigants pick the judge?" Senate leader Phil Berger, R-Rockingham, said in an interview. Berger disagreed that Republicans sought the change because they were unhappy with the recent rulings.
But Sen. Floyd McKissick, D-Durham, said the idea seems to have taken hold because "policies that have been adopted by this body were challenged on constitutional grounds. And when they were challenged, they were determined to be unconstitutional."
Judge Robert Hobgood determined last month a law forcing veteran teachers to give up tenure rights violated the constitutional rights protecting contracts and property. In February, Hobgood cited a section of the constitution in blocking enforcement of a new program spending taxpayer money on tuition for low-income students to attend private or religious schools. The state Supreme Court, however, recently removed Hobgood's order to freeze the program.
No one has publicly accused the plaintiffs in these cases of judge shopping, or questioned Hobgood's jurisprudence. The North Carolina Association of Educators, the state's largest teacher lobbying group, has been involved in both cases, each filed in Wake County.
Berger said the three-judge concept follows from a 2003 law.
At the time, Democratic leaders in the General Assembly got a law passed that set up three-judge panels to consider redistricting litigation. Democrats accused GOP plaintiffs challenging legislative boundaries of "judge shopping" by filing their case in Johnston County. A judge there struck down maps twice.
It was Republicans in 2003 who cried foul about the change in the process. Even Berger, then in his second term in the Senate, offered an amendment in committee to remove the three-judge panels. Berger said late last week the reason for GOP opposition at the time was for fear it would apply to the pending redistricting lawsuits.
Last week, it was the Democrats opposed to expanding the use of three-judge panels. Creating them for every constitutional challenge would be cumbersome and expensive, when appeals courts already hear cases in multi-judge panels, said Senate Minority Leader Dan Blue, D-Wake.
In a turn-back-the-clock moment on the floor, Newton read from a 2003 Senate Redistricting Committee transcript in which then-Senate Majority Leader Tony Rand, D-Cumberland, praised the three-judge panel concept for improving justice and creating a process "without fear of favoritism or without fear of political influence."
The budget bill now goes to the House, which will create its own budget plan. The future of expanding the panels may depend on how willing the Senate is to fight for it.
Republicans have already shown their willingness to pass other laws to increase their legal weapons to preserve legislative accomplishments. Last year, the General Assembly passed a law giving the Senate leader and House speaker the option to defend challenged statutes in court even when the attorney general, who represents the state, won't.
