Here’s a piece of troubling news that got buried (almost assuredly not by accident) last Tuesday when the public’s attention was elsewhere: the North Carolina Supreme Court took the extraordinary step of issuing a new rule on its motion to allow the Chief Justice to appoint temporary substitute justices in certain circumstances. Here’s the full text of the new Rule 29.1 of the N.C. Rules of Appellate procedure:
“In the event that an Associate Justice of the Supreme Court is recused or disqualified from participation in a specific matter, the Chief Justice may, when necessary to avoid the possibility of an evenly divided disposition, appoint a substitute justice who will participate in the consideration and decision of the matter. The substitute justice shall be selected using a neutral rotation process from a list of eligible retired justices maintained by the Supreme Court.”
The rule became effective immediately — that is, last Tuesday.
A preliminary look at the rule raises real questions about its constitutionality/legality. There is no state statute or constitutional provision that specifically confers such authority on the court. While state law contemplates the appointment of emergency temporary justices when a sitting justice becomes incapacitated, there is no provision to do anything of the kind merely when justices must sit out cases due to conflicts of interest. Moreover, the rule’s vague prescription that such appointments will be allowed only “when necessary to avoid the possibility of an evenly divided” panel raises all kinds of questions. Many decisions of the court include multiple findings and rulings. What if the court is unanimously agreed on one part of a case and evenly divided on another? Does the temporary justice get appointed to help decide the whole case? And when will the appointment take place — halfway through deliberation when the even divide becomes apparent?
The bottom line: This is a very important matter that goes to the heart of the citizenry’s constitutional right to elect the members of the Supreme Court. While there may conceivably be some good reasons to enact such a rule, it deserves a lot more notice and opportunity for public input than the court provided — especially at a moment in time in which several fundamental disputes (including the outcome of the Governor’s race and a plan to pack the court with additional appointees) are currently before the public. At best, the court acted obliviously in issuing such a potentially far reaching new rule last Tuesday.