Commentary, News

Former GOP Supreme Court Justice, lawyers group decry rumored court packing plan

boborrquotefinalFormer state Supreme Court Justice Robert Orr, a Republican who served on the court from 1995 through 2004 and later ran for Governor in the 2008 Republican primary, is making absolutely clear that he strongly opposes the rumored plan whereby GOP lawmakers would add two new justices to the court during next week’s special session on hurricane relief. As the image at left shows, Orr told WLOS-TV in recent days that “the only reason to [expand the North Carolina Supreme Court] would be partisan advantage — that’s not good for the court.”

Orr’s opposition to the court packing plan was also reported by NC Policy Watch reporter Melissa Boughton last month. This is from Boughton’s article, “GOP legislative leaders could make rare court-packing move to keep partisan control of state Supreme Court”:

“Orr, a Republican, said it’s not a new idea and that it also came up when the court was reviewing the constitutionality of a retention election as a back-up plan if Edmunds lost. He added that he believes the issue of redistricting is driving the push for partisan control, which isn’t fair to the court or the justices, who took an oath to be fair and impartial.”

The court packing move has been rumored in Raleigh and in legal circles around the state ever since Democrat Mike Morgan defeated incumbent Republican Robert Edmunds in last month’s election a victory that swung the balance of the court from 4-3 in favor of Republicans to 4-3 in favor of Democrats.

Since that time, condemnation for the scheme has been almost universal, as good government groups and editorial writers — both in and out of North Carolina have weighed in. Yesterday, veteran Washington journalist and columnist Albert Hunt of Bloomberg View said the scheme would truly amount to “rigging the system.”

Earlier today, one of the state’s leading legal organizations, North Carolina Advocates for Justice, condemned the idea in a press release. Here’s the conclusion to that thoughtful and informative statement:

“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.

The special session is expected to take place next Tuesday the 13th, though interestingly, the General Assembly has yet to note that on its official public calendar. Stay tuned.

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