RALEIGH — The tug of war between the Republican-dominated General Assembly and Democratic Gov. Roy Cooper resumed on Thursday as the House passed bills slicing the governor’s judicial appointment powers.
The House voted to trim the number of judges on the N.C. Court of Appeals from 15 to 12, likely denying Cooper the opportunity to fill vacancies as judges reach the mandatory retirement age of 72. The chamber also voted to strip the governor of the power to appoint special Superior Court judges and fill District Court judge vacancies. Those appointment powers would be transferred to General Assembly.
Gerry Cohen, who retired in 2014 as the General Assembly’s legal counsel and was the longtime chief legislative bill writer, said the conflict between lawmakers and Cooper over judicial appointments is a bit different that the current legal battle Cooper is waging in court over executive department appointment powers.
“Here, we’re talking about things in a different branch,” Cohen said, noting that the appointments deal with the legislative branch of government, not the judicial branch. Cooper has taken lawmakers to court over laws passed in a mid-December special session of the General Assembly. He has asked the courts to throw out laws requiring his Cabinet appointees to receive confirmation from the Senate, reducing the number of political appointments he has, and restructuring the State Board of Elections and State Ethics Commission.
Cohen said several years ago when he was researching proposed legislation, he learned that the N.C. Constitution first provided for special Superior Court judges in 1865. However, lawmakers didn’t set up special superior court judges until 1929. “The 1929 law says that the Constitution gives the governor the power to appoint special judges,” Cohen said, pointing out that the actual constitutional provision didn’t mention gubernatorial appointment. “Somebody in 1929 thought that the Constitution meant these were gubernatorial appointments.”
None of the sitting Court of Appeals judges would be required to resign to reduce the number of seats on the court. Instead, the number of positions would be trimmed by attrition.
Rep. Justin Burr, R-Stanly, sponsor of the three bills, said reducing the number of appeals court judges makes sense because the caseload of the Court of Appeals has steadily decreased.
“It’s good policy and quite frankly an efficient use of taxpayers’ money,” Burr said.
Rep. Joe John, D-Wake, a former Court of Appeals judge, said the caseload figures cited by Burr don’t tell the whole story about the court’s workload. “The numbers cited by Rep. Burr do not include the number of motions considered by the court on an annual basis,” John said. He said many of those motions are “fact intensive.”
The N.C. Constitution gives the General Assembly the authority to decide the “structure, organization, and composition” of the Court of Appeals. The last time lawmakers changed the composition was in 2000, when the General Assembly increased the membership from 12 to its current 15 members.
Republicans said that the 2000 change was political, giving then-outgoing Democratic Gov. Jim Hunt the opportunity to fill three new seats. Democrats countered that Thursday’s action by House Republicans was politically motivated.
Democrats also argued that the move to strip the governor of the power to fill District Court judgeship vacancies and appoint special Superior Court judges was politically driven.
District Court judges are elected to four-year terms. The N.C. Constitution says that district judge vacancies are to be filled for the unexpired term “in a manner prescribed by law.” State statutes have given the governor the authority to fill such vacancies since district court judges were established in the 1960s.
“This proposal will allow for a more transparent process for filling district court vacancies,” Burr said, explaining that public meetings will be held at the General Assembly rather than having the governor select the new judge with no public deliberation.
Rep. Mickey Michaux, D-Durham, argued against the bill. “We’ve never had any problem with this before and I don’t see why we need to change it,” he said.
The state Constitution also says the General Assembly may provide “by general law for the selection or appointment” of special Superior Court judges. Those judges are neither elected nor assigned to a particular judicial district. Current law allows the governor to appoint special Superior Court judges so long as they are confirmed by the General Assembly. They serve five-year terms.
The three bills now go to the Senate.