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Lawmakers Create 3-Judge Panel System For Constitutional Challenges

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Republican legislative leaders have suffered some legal setbacks in their efforts to revamp state government. Perhaps most significantly, a judge ruled the state could not take tenure away from teachers.

So, the General Assembly responded by changing the court system. Beginning next month, any constitutional challenge to laws the General Assembly passes will be heard by a 3-judge panel appointed by the chief justice of the North Carolina Supreme Court.

This change has drawn the concerns of the state office that runs the court system, and the North Carolina Bar Association. The Bar Association’s president, Catharine Arrowood, says it could allow politics to infiltrate the judicial-selection process.

"It creates a situation where there could be heavy lobbying for who is to be appointed to that court. And certainly the public's perception is– whether that lobbying exists or not – is that that's exactly what goes on - these judges are hand-selected," Arrowood says.

Concern about judicial activism is one reason the General Assembly approved this change as part of the budget bill. Sen. Buck Newton of Wilson County helped guide this change through the legislative process. He spoke to WFAE's Marshall Terry.

MT:  So how about it, Senator Newton. Is this another form of judicial shopping?

BN:    Thank you for having me.  That’s the purpose behind the provision, to eliminate the possibility of judicial shopping and quite honestly it’s in large measure to protect the judiciary from the perception of venue shopping and biased judges fording the will of the majority of North Carolinians who elect the legislature and elect the governor and pass the laws.

MT:  Can you actually pick your judge?

BN:  Well, no not specifically. But you can do a number of things to try to make it more likely that you will have a certain judge or a choice between certain judges.  I don’t think any lawyer who practices in the courts would deny it may not be successful but that attempts are made.

MT:  This panel that starts soon, will this make it harder for laws you and your colleagues pass to be overturned later on?

BN:  No, I really don’t think so.  If one accepts for discussion the premise that a given law is unconstitutional, I don’t think that would be the case at all.  I expect our judges generally speaking, especially on the appellate level, to shoot it straight down the middle.

That will depend on what comes before them.  The purpose of having three judges is to insulate the judges from the pressures that may very logically apply to them.  Especially as elected judges on maybe a local level.   It may be a very unpopular law on their local level where they were elected and where they go to church, where they go to the barber shop or what may be.  Having three judges together to rule in a panel certainly avoids that.

MT:  The chief justice appoints the three members of the panel.  All three regions of the states have to be represented.  But what if the chief justice only picks, in soon-to-be this case, republicans because he’s a republican?  What about political partiality here?

BN:  Or as it’s most likely in years past, they would have all been Democrats. You know, times change.  Certainly, I think the chief justice, whoever is the chief justice whenever this provision is invoked needs to be cognizant of that.  As you saw with the redistricting cases, which have three-judge panels as well, the judges were bi-partisan.  They represented both parties.

Judges run as non-partisan judges.  So, it’s really hard to stick a judge firmly into one party as a partisan.  That’s part of what calls into question their objectivity and this effort was an effort to try to minimize that effect on them as well the perception in the public.

MT:  If someone challenges the constitutionality of this particular law, would the panel itself decide on its own constitutionality?

BN:  I think that’s an interesting question.  I think probably so.

MT:  Are there any concerns over costs about this setup?  Costs of having these judges travel to Raleigh?  Other associated expenses?  I’m thinking of per diem and time.

BN:  I think clearly there could be some costs involved.  But I’m a chair of the appropriations committee that deals with the budgets of the courts, and we do not perceive or anticipate there’ll be any significant additional costs to this that would not be worthwhile.  Obviously there would be some transportation costs involved.  But judges travel a lot already.  They are already scheduled from time to time outside of their districts.  So, judges having to travel to another county to hear a case is really not that unusual.

MT:  Senator Buck Newton, we appreciate you taking the time this morning.

BN:  I appreciate you inviting me and giving me the opportunity to explain to folks what’s going on.  We’ll keep right on working on it.  Thank you very much.