After two years of uncertainty about the future of the Court of Appeals, there appears to have been a breakthrough. Yesterday, a bill was introduced by Republicans in the North Carolina Senate that would preserve the size of the Court of Appeals at 15 members. If the bill becomes law–and I expect it will–the drama surrounding the court shrinkage may end as abruptly as it began.
In April 2017, House Bill 239 became law over Governor Cooper’s veto. The law added a single sentence to the Court of Appeals authorizing statute, N.C. Gen. Stat. 7A-16:
On or after January 1, 2017, whenever the seat of an incumbent judge becomes vacant prior to the expiration of the judge’s term due to the death, resignation, retirement, impeachment, or removal pursuant to G.S. 7A-374.2(8) of the incumbent judge, that seat is abolished until the total number of Court of Appeals seats is decreased to 12.
That is, the statute would shrink the court slowly, whenever a judge hit the mandatory retirement age at the end of the month of his or her 72nd birthday, was appointed to the Supreme Court, or resigned, for example.
The law has generated a great deal of intrigue, from the sudden resignaton of Doug McCullough during the six-day window between the Governor’s veto and the legislative override; to the filing of a lawsuit to enjoin the law (which is about to be argued in the North Carolina Supreme Court); to the impending mandatory retirement of Judge Robert N. Hunter, Jr., which would trigger the first loss of a Court of Appeals seat.
Of course, we are in something of a season of change, with the elevation of Cheri Beasley to Chief Justice, the elevation of an as-yet-unnamed person to backfill Justice Beasley’s seat, and perhaps other backfilling depending on that decision. There has also been a great deal of buzz about the various candidates or likely candidates for the three Supreme Court seats that will be on the 2020 ballot.
As always though, we’ll try to trade only in facts here, not politics. We will keep you posted on how the appellate judicial primaries (if any) and the general election will play out as we get closer to that time.