GREENSBORO, N.C. (WGHP) – New rules being discussed for the North Carolina Supreme Court may not carry as many negative impacts as some of their critics are suggesting.
That’s the opinion of one former associate justice of the court in response to a report by WRAL on Monday that in NC Bar Association meetings there had been consideration of new rules for how some cases are considered by the court.
WRAL described the notes from a meeting on Jan. 19 among the bar’s Board of Governors in which two items were noted that some critics told the station could constitute a “power grab” by a court that as of November has a 5-2 partisan lean to Republicans.
One proposal would suggest the Supreme Court could decide which opinions issued by the Court of Appeals “shouldn’t be used as precedent.” The other would eliminate what now is an automatic right to appeal by the losing party if there is a dissenting opinion by one member of a 3-judge panel from the Court of Appeals.
WRAL quotes supporters who said the changes would “make the courts more efficient,” and former Associate Justice Robert Orr, who practices law in Raleigh, told WGHP that there is some truth in that.
“As to the proposal to eliminate automatic appeals by dissent, it makes sense from the standpoint of the [Supreme Court] managing its caseload better,” Orr, a Republican who served the court from 1995 to 2004, wrote in an email. “As the state's highest court it doesn't need to be having to deal with cases that don't really have substantial questions to be answered.
“Many of those cases now end up with per curiam decisions, i.e. the majority is affirmed or the case is reversed for the reasons in the dissent, thus no written opinion at the [Supreme Court] level.”
In lieu of that automatic appeal, Chief Justice Paul Newby, a Republican who won a very close election in 2020, would be the arbiter of which cases can be heard by the Supreme Court.
That change would require the General Assembly to repeal a general statute and wouldn’t necessarily happen quickly.
“It's about concentrating power in the office of the chief justice, and it's trying to silence some of the dissents that will be coming from judges who are Democrats,” state Rep. Marcia Morey (D-Durham), a former judge, told WRAL. “The whole politicization of the courts is just a disaster.”
The issue about which decisions by the appellate court would be “published” – meaning they establish precedent to be considered by future courts – is an easy one to fix, Orr said.
“The issue of unpublished or published should be resolved by saying that all cases are published – because they are by virtue of being posted on the internet,” he said.
“It was represented to the Court that the Court of Appeals Judges ‘would prefer to be unpublished than to be reversed’ although several Court of Appeals Judges subsequently informed of the change were completely unaware of this proposal,” the notes from the meeting said.
About the rehearing
These changes follow a decision earlier this month when the court scheduled a rehearing of two controversial rulings rendered in December by a then-Democratic majority: a constitutional amendment establishing a voter ID law and the court-ordered redraw of election districts for the U.S. House.
The three Republican justices who were outvoted, 4-3, in December had issued dissents written by Newby and Associate Justice Phil Berger Jr. (son of Senate Leader Phil Berger, a named defendant in the original voter ID suit).
Orr was one of three former judges appointed as special masters by the Supreme Court – Greensboro-connected Robert H. Edmunds Jr. and Thomas W. Ross were the other two– to oversee the required redrawing of maps created by the General Assembly that they found to be unconstitutional extreme partisan gerrymanders.
“The rehearing question is simply one of procedure,” Orr said. “The request for rehearing was done per the rules in existence. The decision to grant it, is the Court's decision if a majority think the there is a likelihood that there was a ‘misapprehension of the law’ and obviously, the 3 dissenters and probably the two new justices think there was.”
Age is too low
Being considered along with all of this is House Bill 71, which would raise the mandatory retirement age of justices on the NC Supreme Court and judges on the NC Court of Appeals from 72 to 76. State Rep. Sarah Stevens (R-Surry) sponsored the bill, along with Rep. Julia C. Howard (R-Mocksville), and Stevens told WRAL she had been asked to file it by members of the judicial and legislative branches. The bill is in the House Judiciary Committee.
The change would affect Newby, who turns 72 in 2027, and also Appellate Judge John Tyson, who turns 72 in 2025. But Orr said it’s an appropriate change.
“The age limit of 72 probably is too low,” wrote Orr, who is 76. “[There is] No requirement on any other office in the state.”
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