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.

First, Arizona, then Georgia, will North Carolina too expand its supreme court in 2016? It was tried (and failed) in 2013.

I’ve written about the ever growing interest in state legislatures lately to add, or reduce, the number of members of their courts of last resort. Arizona did it this year. So did Georgia. Now, a plan first circulated in 2013 in North Carolina to expand that state’s supreme court from 7 to 9 members, this time in a lame duck special session, may be in the offing and might allow a governor (who could be voted out of office, the ballots are still being counted) to pick the 2 new justices.

News reports indicate plans are circulating among legislative leaders to expand the court in a December special session called to deal with the impact of Hurricane Matthew. While the constitution (Art. II, Sec. 24) gives a list of things a special session cannot consider like bridges and juror pay, the supreme court’s not on that list.

And as to the supreme court, North Carolina is a “minimum/maximum” state: the constitution provides a minimum number of justices (Chief Justice + six Associate Justices) but then provides “the General Assembly may increase the number of Associate Justices to not more than eight.” And unlike 26 states, the legislature is free to do this on their own: they don’t need voter approval (24 states) or the court’s consent (Alaska and South Dakota).

This is just the latest attempt to expand the NC Supreme Court. As I noted in 2013, there was a surprise GOP amendment added to an unrelated bill that was popped into a Senate Rules Committee hearing without warning. It was beaten back only when the House Republican caucus failed to support it.

North Carolina Legislative Year in Review: changes to elections for appellate courts; guns in courtrooms


HB 97 Requires reports to legislature of judges who waive criminal fees. Authorizes courts to create special sessions for “specialized cases or matters…including the holding of family court, drug treatment court, veterans’ court, DWI court, mental health court, or any other innovative use of a session of court.” Requires AOC provide directions. Moves Innocence Inquiry Commission under AOC and directs AOC audit annually. Directs creation of E-Courts Information Technology initiative/plan/advisory committee. Allows for use of tech funds to pay for data connectivity. Specifies “neither the Director nor the Administrative Office of the Courts is the custodian of the records of the clerks of superior court or of the electronic data processing records or any compilation of electronic court records or data of the clerks of superior court.”

HB 222 For Supreme Court, requires justices be re-elected by yes/no retention elections. Maintains nonpartisan elections for initial terms.

HB 562 Allows prosecutors to carry firearms into courtrooms.

SB 83 Allows clerks to refuse to accept false liens filed against judges or other public officers and public employees.

SB 161 Allows Supreme Court to sit in its old summer-session chambers in Morganton twice a year.

Pending before Governor

HB 8 For Court of Appeals, permits candidates to place partisan labels next to their names.

North Carolina: plan to switch Court of Appeals races back to partisan contests clears Senate, could be House vote Monday

For years the NC has debated switching the state back to partisan judicial races. Earlier this year the NC legislature approved changes to Supreme Court races, keeping nonpartisan races for initial terms but providing additional terms would be obtained via yes/no retention elections. Now it appears partisan races are coming back on the legislative agenda.

HB 8, as amended and approved by the Senate, would switch races for the Court of Appeals back to partisan races. Under the terms the races would be “open judicial elections with party designations”: judges would not be subject to partisan primaries but would indicate for themselves the party they affiliate with on the ballot. The House approved a similar version of HB 8 earlier in the session.

The House is currently adjourned until Monday.

New North Carolina law expands carrying of guns directly into courtrooms; roundup of guns-in-courts legislation in 2015

I noted back in March the litany of bills that would allow for expanded carrying of firearms into courthouses, and in some cases directly into courtrooms. Since then there’s been a great deal of activity.

In late July North Carolina’s governor signed into law a bill (HB 562) that would allow for prosecutors to carry guns not just into courthouses but directly into courtrooms. Moreover, the no-guns-courthouses policy (specifically that “portion of the building used for court purposes while the building is being used for court purposes.”) already in place no longer applies to administrative law judges or employees of the Department of Public Safety.

At the same time North Carolina was debating expanding guns-in-courthouses, Oregon was moving to restrict. SB 385, as introduced, originally added justice courts and municipal courts to the definition of “court facility” in which firearms and other weapons are prohibited except in specified circumstances. As enacted SB 385 still expands the restriction, allowing municipal court and justice of the peace court judges to ban weapons but only to those portions of the “local court facility” used by the court during the hours in which the court operates. Moreover, in buildings where there are multiple types of court (circuit, municipal, justice of the peace, etc.) the presiding judge of Circuit Court can enforce a ban that cannot be contradicted by an order of the lower court’s judges.

A review of 2015 legislation regarding guns in courts is below the fold.

Continue reading New North Carolina law expands carrying of guns directly into courtrooms; roundup of guns-in-courts legislation in 2015

States Expand Protections Against False Liens for Public Officials

During this legislative session, seven states passed measures that expand protections against the filing of false liens—a legal claim to property for unpaid debt—for public officials, and one other state is still considering such a measure. Over the past 20 years, an increasing number of individuals have taken to filing false liens against public officials, a form of harassment that the FBI has dubbed “paper terrorism.” The states have responded by allowing clerks and filing offices to reject such claims, as recommended by the National Association of Secretaries of State, and by increasing civil and criminal penalties.

In addition to the seven states that passed measures this year, there are a number of other states with existing protections. In 2012, this blog covered the efforts of six states (here and here) to pass such measures, three of which were ultimately successful. Similarly, there were eight states in 2013, and five states in 2014, that successfully passed such legislation. The following is a review of efforts in the states to protect judges and other public officials from false liens during the 2015 legislative session.

Indiana HB 1371 amends existing law prohibiting the filing of false liens to include those who do not currently hold office but have in the preceding four years and provides that liens will be voided if a suit has not commenced within 30 days.

Maryland SB 77 provides that if the filing office believes a claim to be false, they must notify the subject of the filing, state their reasons for believing it is false, and terminate it in 45 days unless the claimant files an affidavit under the penalties of perjury that provides for the claim’s validity. If the filing office still believes the claim to be false after receiving the affidavit, the office may terminate the claim in 45 days unless the claimant petitions for a judicial determination of its validity. (Note: The Governor vetoed HB 312 as duplicative).

Nevada SB 197 amends existing law to prohibit and classify as a category B felony the filing of a false lien or other encumbrance “against the real or personal property of a public officer, candidate for public office, public employee, or participant in an official proceeding, or a member of [their] immediate family” based on the performance of or failure to perform the duties relating to their office or employment. The subject of the fraudulent claim is permitted to bring civil suit against the claimant under this statute.

New Jersey AB 2481 authorizes the filing office to reject a claim it reasonably believes to be materially false or fraudulent because it is (1) filed against a current or former officer or employee of any federal, state, county, local, or other government unit; (2) relates to their performance or failure to perform the duties relating to their office or employment; and (3) “for which the filer does not hold a properly executed security agreement or judgment from a court of competent jurisdiction.” The statute allows the filing office to reject claims filed by incarcerated individuals. The official or employee against whom the claim is filed is also authorized to bring civil suit, and the court is authorized to grant awards up to $2000 or damages incurred and enjoin the defendant from filing any future liens, encumbrances, or court actions without the approval of the court. (Note: The existing statute already included the provision that the filing of a false lien against a public official or employee is a second degree crime).

North Carolina SB 83 amends existing law concerning the filing of false liens or encumbrances against the real or personal property of a public officer, public employee, or their immediate family. The measure authorizes the register of deeds or clerk of court to refuse to file a claim that they reasonably suspect to be fraudulent. The measure also provides an appeals process for denied filings.

North Dakota HB 1307 amends existing law to classify the threatening of a public servant, including the filing of false liens, as a class A misdemeanor for a first offense, and a class C felony for second and subsequent offenses.

California AB 1267 expands existing protections against false liens to apply to lawsuits and other encumbrances against public officials with the intent to harass. It also provides that the subject of the fraudulent claim can request an order directing the claimant to appear in court to defend the claim. AB 1267 was passed by both the House and Senate, but is still awaiting the Governor’s approval.

Pennsylvania SB 212 classifies the filing of a false lien, in addition to any other unlawful action that attempts to influence, intimidate, or hinder a public official or law enforcement officer from performing their duties, as a misdemeanor of the second degree. This bill is still pending in committee.

Delaware and North Carolina legislatures address whether state supreme courts can sit outside of the capital

While a variety of state courts of last resort meet from time to time outside of their normal chambers in the state’s capital, there remains statutes, and in some cases constitutional provisions, that effectively tie the high courts to a particular city or place. As I pointed out in this item after Hurricane Katrina, it was and is somewhat of an open question in a variety of states whether the courts can move. This year legislatures in Delaware and North Carolina passed legislation to address this issue.

In Delaware, an 1852 statute specifies the “The Supreme Court shall be held at Dover“. However, the Supreme Court has been hearing oral arguments in locations other than Dover since at least the 1980s.

HB 113 of 2015 provides specifically that the Supreme Court may meet outside of Dover “when the Court determines that the education of the Bar or law students, or the public interest would be advanced by having a special session of the Court in another location.” The bill was approved unanimously in the House June 18 and unanimously in the Senate June 30. It is set to be transmitted to the governor.

North Carolina’s Supreme Court may be having a “Back to the Future” moment with legislation this year allowing it to return to sit in Morganton for the first time in 150 years. A 1997 law (HB 954) already allowed the Supreme Court to sit twice annually in Old Chowan County Courthouse in the Town of Edenton, the colonial capital of North Carolina. HB 283 and SB 161 both allow the Supreme Court “by rule [to] hold sessions not more than twice annually in the City of Morganton; unless a more suitable site is identified by the court, the court shall meet in the Old Burke County Courthouse, the location of summer sessions of the Supreme Court from 1847?1862.” This article written in 1919 on the 100th anniversary of the court details some of the sittings. The Senate version of the bill was signed into law by that state’s governor on June 19.