Discretion at the Supreme Court

By: - September 25, 2013 10:33 am


Getting a case before the state Supreme Court is not easy.

If you’ve lost at the Court of Appeals but have a judge there who’s dissented, you can get there as a matter of right.

So, too, if your case involves a substantial constitutional question.

But in most other instances, you have to appeal to the discretion of the justices, hoping to persuade them that the court below got it wrong and that your case raises an issue of significant public interest or involves an important legal principle.

It happens rarely – you have to persuade at least three of the seven justices to take your case – but when it does, you just might be halfway home.

That’s because in many if not most instances, when the Court grants discretionary review, a reversal follows.

Certainly that was the case during the year spanning from August 2012 through August 2013. Of the 15 cases the court considered on discretionary review, all but two were reversed or vacated.

And who was the strongest voice behind that trend?  Justice Paul Newby, who authored six of the fifteen opinions – five of them reversals. Justices Mark Martin, Robert Edmunds and Barbara Jackson followed, with just two opinions each.

Dearth of opinions

The pace at the North Carolina Supreme Court has been notoriously slow, and its productivity in terms of written opinions over the past several years has placed it at the bottom of rankings of state supreme courts.

That trend continued in the year ending August 2013, when the Court considered 63 cases and, excluding per curiam opinions in which the Court essentially adopts either the majority or dissent opinion of the Court of Appeals, issued just 33 decisions.

The result has been a relatively undeveloped body of case law from the state’s highest court. More often than not, attorneys, public officials and state residents have had to look to the Court of Appeals instead for guidance on a wide-array of issues impacting daily life – from traffic offenses to business obligations to crime and punishment

Reading the tea leaves on how the court might rule in a particular case, never an easy or reliable proposition, is all-the-more difficult with such a dearth of written analysis.

One place to find some hints might be in those cases the justices choose to take – the ones they think raise an issue of public importance or require a resolution of a legal principle.

With just 15 opinions arising out of discretionary review cases, though, it’s difficult even there to gain some sense of the justices’ analytical and philosophical views.

Eight of the Court’s discretionary review decisions were unanimous, and often involved procedural questions such as when the time to file a notice of appeal expires or what’s needed in a jury instruction.

Others involved questions of statutory interpretation on which the justices easily agreed.

In High Rock Lake Partners v. Dep’t of Transportation, for example, the Court ruled that DOT exceeded its statutory authority when it required a developer, as a condition of approval, to get approval from the railroad to widen a crossing providing access to the highway.

Putting it on the legislature

In a handful of the discretionary review cases, though, the justices revealed more about their ideological and political divides, handing down decisions that hint at broader judicial philosophies.

When it fits the desired outcome, for example, the Court’s majority (most often Republican) willingly deferred to the General Assembly for a solution – even if that approach lead to an untoward result.

In Lanvale Properties v. Cabarrus County, for example, the Court considered the validity of a county ordinance that required developers seeking building approvals to pay an “impact fee” that would support public school construction for the expected influx of new students caused by the development. In a 5-2 decision written by Justice Barbara Jackson, the Court sided with the builders, holding that the county lacked the zoning authority to require such payments. Even though the majority recognized the difficulty county governments faced when trying to accommodate school population growth caused by development, they held that “the General Assembly [was] best suited to address the complex issues involving population growth and its impact on public education throughout the State.”

But Justice Robin Hudson disagreed, joined by then Justice Patricia Timmons-Goodson, finding that the county already had that power and was exercising it creatively in the face of a school funding crisis. Wrote Hudson:

The majority opinion ignores the increasingly desperate situation of many county governments in North Carolina, which are faced with rising populations,diminishing state funding for schools, and already burdensome property taxes. These county governments will be, by the majority’s opinion, deprived of an innovative but statutorily authorized tool to help meet their constitutional obligations regarding education. In my view, a carefully-crafted ordinance like this one before us is exactly the kind of creative regulation of growth to keep pace with school capacity that the General Assembly intended.

In another example, State v. Ellison, the majority again deferred to the General Assembly while acknowledging that, by doing so, the result was unfair. Ellison involved two defendants arrested for buying and selling a relatively small quantity of prescription pills who were sentenced, under an opium trafficking statute, to more than 18 years in prison and a $500,000 fine. Justice Newby affirmed that sentence, saying that it was up to the General Assembly to determine lengths of sentences.

Hudson, joined this time by Justice Jackson, could not dispute what the statute said and thus did not dissent, but would not agree with the majority’s analysis, writing in response:

The illegal sale and use of prescription drugs is one of the most serious problems currently confronting law enforcement. Accordingly, traffickers in this market should be punished severely; however, our current application of [this statute] has led, in this case—and in others—to the prosecution and conviction of individuals who do not appear to fall within the intended class targeted by the statute: large-scale professional drug dealers. Instead, small-scale dealers and end users have been swept in by the broad language of the statute. I am confident that this is not what the General Assembly intended in enacting this statute.

Bucking precedent

While they professed a hesitancy in some cases to effect a legislative result, a majority of the justices in other instances were less reluctant to overturn Court precedent.

In State v. Heien, for example, the Court addressed the question of whether a traffic stop that led to a conviction for cocaine possession was valid if that stop was based upon the arresting officer’s misunderstanding of the law. The officer had stopped the car because one of its rear brake lights was malfunctioning, which he thought to be a traffic violation.  In fact, the law required that only one brake light need be working.

In a 4-3 decision written by Justice Newby, the majority held that so long as officer’s belief in what the law said was reasonable, the stop was valid. “So long as the officer’s mistake of law is objectively reasonable, then, the Fourth Amendment would seem not to be violated,” Newby wrote.

In her dissent, joined by Justice Timmons-Goodson and Chief Justice Sarah Parker, Justice Hudson said that the majority was overturning its own precedent and disregarding the positions taken by most of the federal circuit courts of appeal. “This Court has repeatedly and recently stated that what an officer believes is irrelevant to Fourth Amendment analysis— only the objective facts and the actual law matter,” she wrote.

Hudson also warned that the majority was now opening up a Pandora’s box by introducing an officer’s subjective interpretation into the analysis:

There are many problems with the majority’s decision—it introduces subjectivity into what was previously a well-settled objective inquiry and creates an interpretive role regarding state statutes for police officers and police departments. The danger in adopting a new constitutional rule here is that this particular case seems so innocuous: Of course it is reasonable that an officer would pull over a vehicle for a malfunctioning brake light. But this new constitutional rule will also apply in the next case, when the officer acts based on a misreading of a less innocuous statute, or an incorrect memo or training program from the police department, or his or her previous law enforcement experience in a different state, or his or her belief in a nonexistent law.

And in a 5-2 decision written by Justice Newby, Bumpers v. Community Bank of Northern Virginia (examined in detail here), the Court favored banks over consumers and upended years of consumer protection precedent by injecting a reliance element into unfair trade practices claims.

In separate dissenting opinions, Justices Hudson and Cheri Beasley disagreed sharply with both the majority’s analysis and its result, pointing out in equal measure that the majority did not hesitate, when it fit their needs in this case, to disregard the General Assembly’s intent in enacting consumer protection laws.

Forecasting ahead

Legislative deference and respect for court precedent are likely to meet head-to-head in October, when the Court hears argument in one of its most high-profile discretionary review cases to date, Hoke County v. State — a reprise of the Court’s 1994 Leandro decision which requires the state to provide each child with a “sound basic education.”

At issue now is the legislature’s decision in 2011, as part of cuts to the education budget, to cap the number of at-risk children enrolled in the state’s successful pre-K program at 20 percent.

Wake County Superior Judge Howard Manning refused to enforce that 20 percent cap, ruling instead that the state must provide pre-K to any eligible at-risk four-year-old who applies. In 2012, a unanimous panel of the Court of Appeals affirmed that ruling.

Also on the horizon is a decision in a case heard in September concerning the DOT’s use of the so-called “Map Act,” which hundreds of property owners have challenged in Beroth Oil Co., v. DOT.  Those owners are trying to be certified as a class and ultimately have the court order the DOT to purchase their respective properties, the value of which has been depressed by the department’s nearly 20-year-old public plans to build a road through their neighborhoods in Forsyth County.

A decision there is expected by year-end.

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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at sharonmccloskey.com or @sharonmccloskey.