A North Carolina Supreme Court rule allowing the high court to recall retired judges under special circumstances could establish precedent in cases that otherwise would have none.
The rule, adopted Nov. 8, says the chief justice may, “when necessary to avoid the possibility of an evenly divided disposition,” appoint a substitute justice after a current associate justices are “recused or disqualified from participation in a specific matter.” The rule, 29.1, falls under Article IV of the N.C. Constitution.
The state’s high court is made up of Chief Justice Mark Martin and six associate justices. They serve eight-year terms. In case of a tie on the court, the case is decided according to the ruling of the respective lower court, although the lower court ruling does not establish a precedent.
Michael Curtis, a professor in constitutional and public law at Wake Forest University School of Law, said the rule provides a means of resolving cases — and setting precedent — in the state’s highest court.
The rule, which became effective immediately, would be applied on a case-by-case basis “using a neutral rotation process from a list of eligible retired judges maintained by the Supreme Court,” the order says.
“If you’re going to do it, that’s the fairest way to do it,” Curtis said.
Even so, in an op-ed published Nov. 17 in the News & Observer, UNC-Chapel Hill law professor John Orth questioned the rule, noting that the chief justice may have no way of knowing if the court would split evenly when a justice recused himself.
The court deadlocked last year when it debated the issue of retention elections. The General Assembly had passed a law replacing regular elections for judges seeking new terms with retention elections, or up-or-down votes. A lawsuit challenged the statute, claiming that the constitution defined elections as contests allowing candidates to compete for an office and that the General Assembly’s statute was unconstitutional.
The case reached the Supreme Court and Justice Bob Edmunds, who was up for retention, recused himself. The N.C. Court of Appeals, which decides cases according to a panel of three judges, had rejected the retention law, and Edmunds ultimately lost a bid to retain his seat to Superior Court Judge Mike Morgan, 54 percent to 46 percent.
When the justices deadlock, they “affirm the decision of the three-judge panel,” says Curtis, referring to the appellate court. “But it has no precedential value, so the issue is still unresolved. There’s no judicial decision someone can cite and say, ‘This is what the law is.’”
In other words, Curtis says, issues that could have been settled — establishing a precedent — aren’t.
Morgan’s victory swayed the balance of the N.C. Supreme Court to the left.
A small possibility exists that state lawmakers could vote to expand North Carolina’s Supreme Court by up to two additional members, according to a provision in the N.C. Constitution.
But expansion beyond eight associate justices would require a state constitutional amendment.
If Republicans hope to expand the high court in order to add Republican justices, their time might be limited. The governor appoints members to vacant court positions, as spelled out in Article IV, Section 19. If Gov. Pat McCrory loses his re-election bid to Democratic Attorney General Roy Cooper, McCrory would have to make his picks before Cooper is sworn in.
No plan exists for the General Assembly to return to Raleigh before Jan. 11, 2017. But McCrory has said he expects to call lawmakers back to town before the end of the year to address issues related to Hurricane Matthew.