House budget item could influence upcoming NC court elections

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  • The N.C. House's proposed budget would raise the mandatory retirement age from 72 to 76 for members of the state Supreme Court and Court of Appeals.
  • The change would allow Chief Justice Paul Newby, a Republican, to serve his full term. It would allow Justice Michael Morgan, a Democrat, to serve most of a second full term.
  • Appeals Court Judge John Tyson would be able to serve past July 2025 under the House budget provision.

One provision in the N.C. House’s 415-page budget plan could play a role in upcoming elections for the state’s two highest courts.

“No justice or judge of the appellate division of the General Court of Justice may continue in office beyond the last day of the month in which the justice or judge attains 76 years of age,” according to the provision on page 272 of House Bill 259.

That would mark a change in current state law. Judges are now required to retire by the end of the month when they turn 72.

The budget item is similar to House Bill 71, filed in February. That bill would have applied to all judges serving in the “General Court of Justice.” The House budget provision applies only to members of the N.C. Supreme Court and Court of Appeals.

For the state’s highest court, raising the mandatory retirement age would have the most direct impact for Republican Chief Justice Paul Newby. Elected in 2020, Newby cannot serve a full eight-year term under current state law. He would be required to retire by the end of May 2027.

The next governor would have a chance to appoint a replacement to fill the remainder of Newby’s term. The appointed chief justice would run in 2028 to win a full eight-year term.

With a change in the retirement age, Newby could serve his full term. He also could seek re-election, though he would be required to retire in May 2031, less than 2 ½ years into an eight-year term.

Senior Associate Justice Michael Morgan, a Democrat, is five months younger than Newby. Morgan can serve through the end of his current term in 2024. Under current law, he would be able to serve less than three years of a new eight-year term if he seeks re-election. Under the provisions of the House budget, Morgan would be able to serve almost seven years of an additional eight-year term.

Justice Tamara Barringer, a Republican, can serve her entire eight-year term, through 2028, under current law. If she sought re-election that year, she could serve just two years of a new term. With the change proposed in the N.C. House, Barringer could serve for six years of a new term if she chose to seek re-election.

Justice Anita Earls, a Democrat, can serve her entire term through 2026. Under current state law, Earls would be able to serve a little more than five years of a second term. With the House’s proposed changes, Earls could serve a full second term. She even could run for a third term, but she would be forced to retire little more than one year into that term.

The other three state Supreme Court justices face mandatory retirement no earlier than 2044 under current law.

At the Appeals Court, the House budget provision would have the most immediate impact for Judge John Tyson, a Republican. Voters elected Tyson to a third term last November. Under current law, he must retire by July 2025, 2 ½ years into his term.

With the change proposed in the House budget, Tyson could serve through July 2029. He still would be required to retire before his term expired at the end of 2030. Under either scenario, the governor will appoint a replacement.

Judge John Arrowood, a Democrat, can serve his full term through 2026. If Arrowood wanted to seek re-election, he could serve less than two years of a new term. With the House’s proposed change, he could serve six years of a new term before facing mandatory retirement.

The House will vote on its budget plan in the days ahead. It’s not clear whether the state Senate will insert a similar provision into its own budget proposal.

The change in mandatory retirement for appellate judges and justices would take effect only if the provision ends up in a budget approved by both chambers of the General Assembly and enacted with or without Gov. Roy Cooper’s signature.