Should Democrats on the State Supreme Court make the highly partisan and controversial move of forcing two Republican State Supreme Court Justices off a critical case to decide the fate of voter-approved state constitutional amendments requiring voter ID and lowering the maximum income tax rate, State House Republicans can effectively suspend those Democrat justices immediately and indefinitely by a simple majority vote.
State House Republicans could enact this step despite the fact Democrats control the Executive Mansion and state Supreme Court.
Carolina Journal first broke the news that Democrats on the state Supreme Court were seriously considering using their narrow 4-3 court majority to sideline two Republican justices, with the eventual goal of nullifying the voters’ decision in 2018 to amend the state constitution to require photo identification for voting and to lower the maximum state income tax rate from 10% to 7%.
Carolina Journal’s reporting was verified when Democrat Justice Anita Earls signed an order directing the plaintiffs in the amendments case — the NAACP — and legislative defendants to present arguments to the court on the issue of forced removals of state Supreme Court justices over perceived conflicts of interest. CJ further reported that on March 2, 2019, Earls was a guest of honor at a local NAACP fundraiser well after it had filed suit in NAACP v. Moore and after Superior Court Judge Bryan Collins had issued a ruling in the case. It was virtually guaranteed this case was headed for the Supreme Court when Earls was raising money for the plaintiffs.
As explained by Dr. Andy Jackson, director of the Civitas Center for Public Integrity with the John Locke Foundation, Article IV, Section 4 of the North Carolina Constitution lays out the basics of impeachment:
The House of Representatives solely shall have the power of impeaching. The Court for the Trial of Impeachments shall be the Senate. When the Governor or Lieutenant Governor is impeached, the Chief Justice shall preside over the Court. A majority of the members shall be necessary to a quorum, and no person shall be convicted without the concurrence of two-thirds of the Senators present. Judgment upon conviction shall not extend beyond removal from and disqualification to hold office in this State, but the party shall be liable to indictment and punishment according to law.
As with the U.S. Constitution, impeachment is the start of the process, with the N.C. House functioning as the rough equivalent of a grand jury. Removing an impeached individual from office requires a trial in the Senate and a two-thirds vote of all senators present.
As noted by Christopher Cooper, a political science and policy studies professor at Western Carolina University, the process for impeachment in North Carolina mirrors that of the federal government’s process.
“It’s actually pretty similar to the way it works in Congress,” Cooper wrote.
The articles of impeachment would be drafted in the House, where representatives would act as a grand jury. A simple majority is needed for impeachment.
Causes for impeachment can include the commission of any felony, or the commission of any misdemeanor involving moral turpitude, or for malfeasance in office, or for willful neglect of duty, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
Forcibly removing two duly elected state Supreme Court Justices from a critical case for the first time in North Carolina history could arguably be considered malfeasance in office.
However, chapter 123 of North Carolina’s General Statutes, (123-12) includes an important difference.
Every officer impeached shall be suspended from the exercise of his office until his acquittal.
“It applies to the governor, to our judges, and our Council of State folks as well,” said Cooper.
Also important, neither the State Constitution nor chapter 123 mandates a timeframe when a trial in the state Senate must begin or conclude.
The N.C. Constitution and accompanying statues give the Senate a wide berth and could allow senators to slow-walk any trial possibly past the 2022 elections, when Republicans have a strong chance at retaking a state Supreme Court majority.
“The whole question of impeachment can and should be avoided by the justices recognizing that they have no basis for forcibly disqualifying two justices who were duly elected by the voters just last year,” said Jeanette Doran, president of the N.C. Institute for Constitutional Law.
“Voters put these justices on the bench, and the voters have a right to expect they will be allowed to do their duty.”
Carolina Journal has confirmed that some members of the N.C. House are openly advocating for this option and believe it could be justified against Supreme Court Democrats if they force Republican justices to the sidelines. Some House Republicans are strongly advocating exploring this option against Superior Court Judge David Lee, the judge in the long-running Leandro school funding case, who has signaled he might try to force the General Assembly to fund $5.6 billion in new spending on public education. Republican legislators believe this to be a gross overreach by the judge in extreme violation of the separation of powers.
At one point during a recent hearing, Lee expressed keen interest in a case from 2004, when a Kansas judge ordered all public schools closed until the state legislature upped school funding.
“I take it the judge out there just closed all the schools in the state? I bet it didn’t take too long for somebody to act on that, did it? Maybe the weekend?” said Lee.
The press office of Senate leader Phil Berger, R-Rockingham, put out a press release denouncing Lee as “unhinged” for “contemplating” shuttering schools to force the legislature’s hand.
“This is yet another example of why the founders were right to divide power among the branches of government, giving power to create law and spend money with the legislature, not an unaccountable and unelected trial judge,” said Berger. “Judge Lee makes a mockery of our constitutional order with every additional hearing.”
Impeaching judges would be a controversial move, one rarely deployed in N.C. history. Long delays in trials would bring harsh criticism to the Republican-led N.C. General Assembly.
“The kind of scorched-earth partisan warfare between the branches of government that is now under consideration would be a disaster for North Carolina, and none of the parties involved would survive with their reputations intact,” said Jon Guze, senior fellow in legal studies at the John Locke Foundation.
“If there’s a silver lining in this whole sorry business, it’s this: With the Democrats on the Supreme Court threatening to attack two of its Republican members by means of involuntarily recusal, and the Republicans in the General Assembly threatening to retaliate by impeaching the court’s Democrats, we may have reached what international relations experts used to call ‘mutual assured destruction’ or ‘MAD.’ During the Cold War, MAD helped ensure that neither the United States nor the Soviet Union launched a first strike. We must hope the threat of MAD will similarly deter a first strike in our current standoff.”
The General Assembly has never faced a partisan state Supreme Court majority willing to throw its own duly elected members off of cases to reverse the voters’ decision to amend the constitution. Or a single judge that may order schools shut to subvert the legislature’s clearly delineated powers to appropriate state funds.
Bottom line: If the legislature chooses to play its hand, it could sideline these judges before they do any more harm to North Carolina’s constitutional norms and let the voters judge the actions of the legislature in these matters in November 2022.
The Woodshed, by investigative political analyst Dallas Woodhouse, is a unique blend of news and opinion based on his expertise and years of experience in North Carolina’s political trenches. For more follow him on Twitter at @DallasWoodhouse