Our state legislature has had a difficult time passing some of its recent laws. Judges kicked them back, declaring them to be unconstitutional. The legislature’s response: change the way constitutional challenges are handled.
This is disturbing, to say the least.
The legislature’s new law requires all constitutional challenges to be heard by three-judge panels appointed by the chief justice of the state Supreme Court, the News & Observer of Raleigh reported Sunday. Up until now, constitutional challenges have been heard by individual Superior Court judges – all of whom are familiar with constitutional law.
In the face of their failures to pass laws, Senate leader Phil Berger has cried “judicial activism” – which essentially means I don’t like the judge’s decision.
The legislature frames its new law as a response to “judge shopping,” or the practice of lawyers trying to find seemingly sympathetic judges to hear their cases. That practice is an old one. But surely there are better ways to fight it than the draconian overhaul that three-judge panels represent, even if, as the Republicans note, the Democrats, when they were in power, set up three-judge panels to hear redistricting lawsuits.
“It’s extremely disturbing,” Catharine Arrowood, president of the 20,000-member N.C. Bar Association, speaking of the latest three-judge panels, told the News & Observer. “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,” Arrowood said.
“I’m constantly frustrated with the courts being treated like they are your local permitting agency or something,” she added. “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.”
Sharon Gladwell, a spokeswoman for the state Administrative Office of the Courts, told the News & Observer that 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, as the legislation would call for, will be costly to an already overburdened system, she said.
The failed legislation that spurred the legislature’s desire to stack the court isn’t routine; its proposed laws – the ones that were determined to be unconstitutional – dealt with is-sues such as imposing new conditions on elections, taking away teacher tenure and providing vouchers for private-school tuition. They were controversial laws that made far-reaching changes in the way the state handles its business. It’s not surprising that some might be rejected.
What is surprising, and disappointing, is that, rather than consider that their legislation might be flawed, and perhaps try to improve it, the legislature instead tries to change the rules.
We hope the law creating this new judicial panel will face a court challenge, in federal court if need be, and be rejected.
