The notion that the state should have a three-judge panel at the trial court level to decide constitutional challenges to state laws was the brainchild of the Senate, appearing in its budget back in May.
Although the House had no similar language in its draft budget, the provision is back in the latest (and supposed final) budget which the Senate approved twice during the last 24 hours and is now before the members of the House.
If the House passes the budget with the three-judge panel provision included and the governor signs it into law, North Carolina will be the one and only state in the country with such a provision, as Bill Raftery at Gavel to Gavel reported here.
“No state provides for a mandatory three judge panel at the trial level for constitutional challenges to state laws,” he said.
We wrote back in early June that the impaneling of three-judge trial courts to decide any and all constitutional challenges to state laws was just a bad idea — one that had been rejected elsewhere as often unworkable and unnecessary.
And judges at the appellate level disliked them because of the provision — as is included in the current proposal here — making decisions from the panels directly appealable to the Supreme Court.
As one federal judge in western North Carolina wrote in 1995, when referring to similar panels at the federal level:
The legislative history of the repealing bill shows a thorough dissatisfaction with the operation of three-judge courts, finding the procedure to be confusing and inefficient. The Senate report states that “three-judge court procedure has recently been termed by one scholar, `the single worst feature in the Federal judicial system as we have it today.’ It has imposed a burden on the Federal courts and has provided a constant source of uncertainty and procedural pitfalls for litigants.
Here’s more from our earlier post :
Judges didn’t like them. And it became increasingly difficult to empanel three judges.
“Consuming the energies of three judges to conduct one trial is prima facie an egregious waste of resources,” David Currie, then a professor at University of Chicago Law School wrote years before the repeal.
Supreme Court justices didn’t appreciate lawmakers interfering with the Court’s long-held discretionary right to select the cases worthy of review. And they felt inundated by the number of appeals they were required to hear because of the automatic direct appeal.
“Members of the court were very vocal about it in the 60s and 70s,” Solimine said. “Warren Burger and others were just openly hostile to the three-judge courts because of the mandatory appeal aspect and they unabashedly urge Congress to modify the statute.”
And many people thought the three-judge courts had become unnecessary, he added. The single-judge district court and ordinary avenues of appeal worked fine for most constitutional challenges.
For litigants, working their cases through the courts proved more troubling.
Upon the filing of a lawsuit, a single district court judge determined whether the case was properly in federal court and whether it otherwise fit the parameters for assignment to a three-judge panel.
As pointed out by scholars, those initial rulings set in motion an appellate review process that played out in a number of confusing ways and led at times to inconsistent results.
What if the initial judge was mistaken? What if similar judges across the country were ruling differently? And where did an appeal of those initial rulings go – to the Circuit Court of Appeals, to a three-judge panel, or directly to the U.S. Supreme Court?
Similar problems exist with the proposed North Carolina law, which will require a judge to determine initially whether a case presents “a challenge to the validity of an act of the General Assembly on its face” before any transfer to a three-judge panel.
That may be a larger number of cases than the senators anticipate, given that, as the state bar noted in its statement opposing provisions of the senate budget, constitutional challenges often arise in suits between private citizens too, not just in direct lawsuits against the state.
How will “on its face” be determined? Does that mean simply any case that crosses the clerk’s desk alleging that a state law is unconstitutional? Or does that mean the more nuanced constitutional interpretation of a “facial” as opposed to an “as applied” challenge?
Solimine suspects even that initial determination might breed confusion and litigation.
“If it does pass, North Carolina’s bill will probably suffer some of the same problems as occurred in the federal system,” he said, “leading some people to ask, as they did with that system, “Is this really necessary?”