North Carolina: surprise special session called bill restructure appeals challenges states laws create unique en banc review system make appellate races partisan

I mentioned that there was speculation that the special session called by NC’s governor to deal with Hurricane Matthew relief might turn into an opportunity to expand the state’s supreme court from 7 to 9 members, giving the outgoing Republican governor the chance to name the 2 new seats.

That plan never materialized, however immediately at the close of the Hurricane Matthew special session, another called by the legislature’s GOP majority itself was started and this one included an omnibus bill that would restricted the state’s judiciary.

First, SB 4 as introduced in the 2016 Fourth Extra Session crams together numerous different items regarding a new Bipartisan State Board of Elections and Ethics Enforcement to take over from the existing Board of Elections, and other similar moves.

Court-specifically, the bill repeats an effort made over the last several years to reintroduce partisan races for the state’s appellate courts. As it stands the Supreme Court races are nonpartisan and in Court of Appeals races candidates may, but are not required, to put party labels next to their names.

Second, on the appellate front, challenges to state laws currently go to the state’s trial courts and then from there to the Supreme Court, hopping over the Court of Appeals.

Appeal lies of right directly to the Supreme Court from any order or judgment of a court, either final or interlocutory, that holds that an act of the General Assembly is facially invalid on the basis that the act violates the North Carolina Constitution or federal law.

Under SB 4 the appeals would now lie directly to the Court of Appeals. Currently the 15-member court sits in panels of 3 and does not have an en banc procedure. SB 4 would create such an en banc practice and effectively require en banc review if any judge dissented from the original 3-judge panel.

An appeal of right [to the Supreme Court] pursuant to this subdivision is not effective until after the Court of Appeals sitting en banc has rendered a decision in the case, if the Court of Appeals hears the case en banc, or until after the time for filing a motion for rehearing of the cause by the Court of Appeals has expired or the Court of Appeals has denied the motion for rehearing.

SB 4 has already cleared the Senate Redistricting Committee and is now in Senate Finance. UPDATE: Appears to have cleared Senate Finance, now heading to Senate floor.