Top NC senator backing bill requiring appeals court votes

Published 4:28 pm Thursday, December 30, 2021

RALEIGH (AP) — North Carolina Republican lawmakers could advance legislation soon that would require state appellate judges to disclose publicly how they voted privately on orders issued by their courts, the state Senate’s top leader said Thursday.

The proposal follows a rapid-fire series of rulings this month involving redistricting litigation that ultimately delayed the March primary until May. Those rulings didn’t detail how court members sided.

Senate leader Phil Berger told reporters that colleagues are considering legislation that would mandate orders issued by the state Supreme Court and the Court of Appeals to include how each jurist hearing a case came down on the decision.

Usually routine orders or those on quick-moving motions issued by the two appeals courts do not disclose how individual judges voted privately. Such Supreme Court decisions are signed “for the court” by the court’s most junior justice. The clerk for the Court of Appeals usually signs similar orders from that court.

That’s how it happened three weeks ago when a three-judge Court of Appeals panel blocked candidate filing for U.S. House and legislative seats minutes before the filing period was to begin. Later the same day, a the clerk’s signature was affixed to an order canceling that delay, backed by “a vote of the majority of judges” on the 15-member court.

Two days later, t he Supreme Court suspended candidate filing and delayed the March 8 primary until May 17 so a panel of trial judges could hear arguments alleging partisan and racial gerrymandering in maps approved by the GOP-controlled General Assembly in November. The Supreme Court order was signed only by Associate Justice Tamara Barringer.

Berger a Rockingham County Republican, said a decision like this “just cries out for transparency” and without disclosure creates “suspicion” among the public. Registered Democrats hold a 4-3 seat advantage on the Supreme Court. Republicans hold 10 of the 15 Court of Appeals seats.

Berger said he’s interested in legislation to make sure that going forward whenever an order is issued, “whoever was in favor of the order we know and who was opposed to the order we know.” Justices and judges already put their names to the longer, formal court opinions they write.

GOP U.S. Rep. Dan Bishop, who is seeking reelection in 2022, filed a lawsuit in federal court last week against all Court of Appeals and Supreme Court members and other officials. He said he’s been unable to obtain the judges’ votes on the orders.

Berger said he hopes legislation could be considered if and when the General Assembly next returns to work, which currently would be no earlier than Jan. 10. Approved legislation would be subject to Gov. Roy Cooper’s signature or veto stamp.

Democratic state Sen. Jay Chaudhuri of Wake County said Thursday that while the justices were following precedent in how the Dec. 8 order was presented, revisiting that standard is “a discussion that I think that we’re willing to have.”

But Chaudhuri said it’s likely the impetus for such action comes from the GOP’s unhappiness with the Supreme Court’s order directing that the trial judges rule on the redistricting lawsuits by Jan. 11. That trial begins Monday, with a likely Supreme Court appeal on the outcome.

“I think one could say that (Republicans are) also injecting politics into the process,” said Chaudhuri, the minority whip.

Berger and a handful of House and Senate members were in Raleigh to hold non-voting floor sessions. The full General Assembly hasn’t gathered since Nov. 29, when they passed bills and sent them to Cooper. The 170 lawmakers spent plenty of time in the capital city during 2021. This year’s session began in January and by one measure marked the second longest uninterrupted annual session since at least 1965.