NC Advocates for Justice Says: Protect Judicial Independence - Don't Pack the Supreme Court

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Last Friday Governor McCrory announced a special legislative session beginning on December 13. The purpose is to help victims of Hurricane Matthew and the wildfires in western North Carolina, but it has been reported that legislative leaders may use the special session to pack the Supreme Court: the legislature would add two seats to the Court, to be filled by Governor McCrory in his final days in office.

Important changes in the judicial system demand careful review, with broad public participation.

For more than 100 years, North Carolina citizens have exercised their right under our constitution to elect justices to the state Supreme Court. On November 8, voters elected Judge Mike Morgan to the Court by a 54-46 margin – a difference of nearly 350,000 votes. Last Friday Governor McCrory announced a special legislative session beginning on December 13. The purpose is to help victims of Hurricane Matthew and the wildfires in western North Carolina, but it has been reported that legislative leaders may use the special session to pack the Supreme Court. The legislature would add two seats to the Court, to be filled by Governor McCrory in his final days in office.

Under Article IV, Section 6(1) of the North Carolina Constitution, the General Assembly may increase the number of justices from seven to nine. The sole purpose of that constitutional provision, adopted in 1962, was to provide for additional justices if the workload of the Court became too onerous.

On November 15, 2016, a bipartisan committee of the North Carolina Commission on the Administration of Law and Justice, an independent commission convened by Chief Justice Mark Martin, passed a resolution urging the General Assembly “to tie the number of judges and justices on a given court to the workload of the relevant court,” and warned that “any other consideration threatens public trust and confidence.” We agree.

In the past, the legislature has followed these principles, only adding seats to the appellate courts when the workload demanded it. The workload of the current Court cannot justify its expansion. In 2015 and 2016, Supreme Court justices have written an average of six opinions per justice per year. By contrast, each judge on the Court of Appeals writes more than 100 opinions per year. And in the 1950s, when Article IV, Section 6(1) was proposed, each Supreme Court justice averaged writing 50 opinions per year.

We strongly support Chief Justice Martin’s call for additional funding for our judicial system, but oppose using those scarce funds to add unnecessary positions to the Supreme Court. If hundreds of thousands of additional budget dollars are available, they should go to overburdened trial courts, family courts, prosecutors and victim-witness assistants, indigent defense lawyers, clerks, probation officers, and technology improvements.

Important changes in the judicial system demand careful review, with broad public participation. Expansion of the Court should only occur after a request by the Chief Justice and the Administrative Office of the Courts based on solid empirical data, followed by full committee hearings and debate, not rushed through a special session that was convened to help victims of natural disasters.

We ask the leaders of the House and Senate to publicly declare that they will not use the special session to expand the Supreme Court. And we ask Governor McCrory to affirm that the special session will be limited to helping citizens and communities impacted by Hurricane Matthew and the wildfires in western North Carolina, and to promise that he will veto any unrelated legislation.

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CEO Richard M. Taylor, Jr.
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