by Jordan Green and Chad Nance
The Republican-controlled General Assembly inserts provisions into the budget to create three-judge panels to hear constitutional challenges and give itself confirmation power over judicial appointments. Meanwhile, business interests pour money into judicial races to push the higher courts in a more conservative direction.
Two little-discussed provisions of the state budget passed by the General Assembly last week give the Republican-controlled legislature greater influence over the state judiciary and insulate the majority from legal challenges.
Gov. Pat McCrory has said that he intends to sign the budget into law.
One provision, a goal of Senate Republicans since at least the beginning of the short session, requires that any lawsuit filed to challenge the constitutionality of a law passed by the General Assembly will be heard by a three-judge panel appointed by the chief justice of the state Supreme Court.
The current chief justice, Sarah Parker, is retiring at the end of her term, and Republicans see an opportunity to replace her with a jurist friendly to their legislative agenda. Mark Martin, who currently serves on the high court as an associate justice, holds an advantage in both experience and fundraising over his opponent, Ola Lewis, who serves as senior resident superior court judge in Brunswick County. Lewis, like Martin, is a registered Republican, but she clerked in the law firm of then-Democratic House Speaker Dan Blue after passing the bar in 1990.
“I think it is probably unconstitutional, but it’s for sure hugely bad policy that is opposed by Republicans and Democrats alike,” said Rep. Rick Glazier, a Fayetteville Democrat. “I spoke on the floor and in the conference committee, saying that it is clearly designed to get a favorable three-judge panel. Nobody denied it when I made the accusation.”
The Guilford County School Board and Durham County School Board are currently suing the state of North Carolina to challenge the constitutionality of a law passed by the General Assembly in 2013 to dismantle teacher tenure. On May 9, Special Superior Court Judge Richard Doughton granted a preliminary injunction preventing the law from taking effect on any Guilford or Durham county teacher whose tenure contracts were in place before the legislation was passed.
A second provision eliminates four special superior-court judges who were appointed by former Gov. Bev Perdue, and requires that any future appointments by governors to the superior-court bench receive confirmation from the General Assembly. Superior-court judges typically preside over all felony criminal trials and civil trials involving more than $10,000, in addition to appeals from district court.
“There’s been an attempt for the past two years to get rid of special superior-court judges because most of them were appointed by Gov. [Bev] Perdue,” said Glazier, a member of the House Judiciary Committee. “There’s no doubt about it: The effort to get rid of the special superior-court judges was a partisan attack to get rid of judges appointed by a Democratic governor. There’s no basis in efficiency or economy.”
“There’s been an attempt for the past two years to get rid of special superior-court judges because most of them were appointed by Gov. [Bev] Perdue,” said Glazier, a member of the House Judiciary Committee. “There’s no doubt about it: The effort to get rid of the special superior-court judges was a partisan attack to get rid of judges appointed by a Democratic governor.”
The provision also requires that as the four judgeships become vacant, new judgeships will be created with the requirement that the governor submit nominees for confirmation by the General Assembly. The law even goes so far as to say that if the governor fails to make a nomination within 90 days of a vacancy, the Senate president pro tem and House speaker will jointly submit a nomination. Only when a nominee is confirmed by joint resolution by the General Assembly will the newly appointed judge be allowed to serve on the bench.
Glazier said the House Judiciary Committee debated the merits of eliminating special superior court judges and agreed on the need for two new business-court judges — part of the legislation — but the confirmation language “just appeared overnight.”
“I firmly believe it came from the Senate and not from the House,” Glazier said. “I think it is a continuing effort to diminish the role of the executive branch’s role and to maintain an even more politicized attack, if you will, on the judiciary. I don’t think the provision comes independent of the other provisions that would also be seen to create judicial forums that the Senate would view as more favorable.”
Glazier said he believes the purpose of the confirmation requirement is to curb the power of both McCrory, a Republican, and a possible Democratic successor.
“It’s clearly an attempt to control Gov. McCrory’s appointments because there’s been a dispute between the Office of the Governor and the Senate, and should McCrory be a one-term governor it would also serve their purposes to prevent a Democrat from making judicial appointments without confirmation. I think it serves both purposes, and it’s wrong and it’s not how we treat appointments and the independence of the judiciary to create an even more highly politicized appointment process which does not serve the citizens.”
Republican lawmakers, including Senate President Pro Tem Phil Berger, House Speaker Thom Tillis and the co-chairs of the two judiciary committees in the Senate, did not return calls for this story.
Republican lawmakers’ successful bid to exert control over the state judiciary comes amid an ongoing effort by pro-business groups to push the state’s Supreme Court and Court of Appeals in a more conservative direction.
Judicial races are nominally nonpartisan, but both major political parties promote favored candidates. And candidates take advantage of opportunities to address party activists. As an example, Associate Justice Cheri Beasley, an African-American Democrat who is defending her seat on the Supreme Court, is scheduled to give a talk entitled “The Importance of Voter Participation in Electing Judges in North Carolina” to the Forsyth County Senior Democrats in Winston-Salem on Thursday morning.
A shadowy network of political action committees set a precedent two years ago by spending $695,000 on an uncoordinated TV ad to support Supreme Court candidate Paul Newby. An outfit called NC Judicial Coalition, financed by another political action committee named Justice for All NC, commissioned a Louisiana-based company named Innovative Advertising to produce the TV spots in support of Newby.
While the marquee judicial race is the contest for the open chief justice seat on the Supreme Court, an associate-justice race on the high court has drawn the most money. The attention given to the associate-justice seat currently held by Robin Hudson perhaps reflects Republican lawmakers’ confidence in the prospects of conservative candidate Mark Martin to win the election for chief justice.
Justice for All NC resurfaced again this year in Hudson’s effort to defend her seat against two conservative primary opponents. The ad by Justice for All NC, which ran before the primary, accused Hudson of siding with convicted child molesters, based on her dissent in a 2010 case. A News & Observer editorial called the spot “the most repugnant ad in this election cycle,” adding that Hudson’s opinion was consistent with the constitution in that she took the view that applying a law requiring electronic monitoring of sex offenders who were convicted before the law went into effect amounted to retroactive punishment.
Justice for All NC paid Innovative Advertising $899,000 to produce and place the ad — a sum that exceeded the total funds raised by Hudson and four opponents when she won election to her seat on the high court eight years ago. During the same period in late April when Justice for All NC spent $899,000 for the ad, the Washington-based Republican State Leadership Committee, or RSLC contributed $900,000 to the political action committee.
Reynolds American, based in Winston-Salem, is the RSLC’s second largest donor, after Blue Cross Blue Shield. Koch Industries is also a significant contributor.
While RSLC-backed Justice for All NC was attacking Hudson, a political action committee identified as North Carolina Chamber IE spent $245,000 and $80,000 on TV advertising buys to support her two primary opponents, respectively Jeanette Doran and Eric Levinson.
Some of the same prominent North Carolina conservative donors who financed the Keep Conservatives United super PAC that backed Phil Berger Jr.’s unsuccessful bid for US Congress have contributed to efforts to elect conservative judges.
Doran placed third in the primary, leaving Hudson and Levinson to fight on to the general election in November for the associate justice seat. The two have raised a combined $813,007 as of June 30, more than the total cost of the 2006 election that initially put Hudson in the seat.
So far, Hudson is leading Levinson in fundraising, $475,138 to $325,878. Clearly sensing an attempted power grab, the state Democratic Party has spent a total of $10,861 on robocalls, newspaper ads and graphic-design work to support Hudson.
Some of the same prominent North Carolina conservative donors who financed the Keep Conservatives United super PAC that backed Phil Berger Jr.’s unsuccessful bid for US Congress have contributed to efforts to elect conservative judges. Phil Berger Jr., who serves as district attorney in Rockingham County, is the son of Senate President Pro Tem Phil Berger.
Individuals associated with Captive-Aire Systems and Glen Raven, along with Salisbury lawyer Bill Graham, were among the donors to the Keep Conservatives United super PAC.
Graham and his wife have contributed a total of $8,000 to Levinson’s campaign. Captive-Aire Systems CEO Robert Luddy contributed $5,000 to Doran’s primary campaign, and the maximum $10,000 to Martin’s campaign for chief justice of the Supreme Court.
Robert N. Hunter Jr., who is running for Martin’s vacant associate-justice seat, has received $5,000 from Luddy, $5,000 from state budget director Art Pope; $4,032 from the late Joyce W. Pope, who was Art’s mother; $2,000 from Graham; and $1,000 from Reynolds American Vice President David M. Powers.
Despite strong support from the business community, Hunter is being outpaced in fundraising so far by his opponent, Sam J. Ervin IV, who has garnered significant support from lawyers. Hunter and Ervin currently serve together on the Court of Appeals.
While Republican lawmakers have insulated their pro-business agenda from legal challenge, the business community stands a chance to shape a more friendly judiciary, depending on whether the flood of advertising money sways the electorate in November.
This story is a collaboration between Triad City Beat and Camel City Dispatch and is being published concurrently by the two outlets.