Three-judge panels to hear Constitutional arguments on laws passed by Republican legislature in surprise special session

North Carolina Supreme Court Chief Justice Mark Martin appointed three-judge panels this week in two cases challenging the constitutionality of laws passed by the Republican-led General Assembly in a surprise special session last month.

Wake County Superior Court Judge Donald Stephens temporarily blocked the implementation of the two laws last week – the first part of Senate Bill 4, which overhauls the State Board of Elections; and Section 4 of House Bill 17, which transfers power from the State Board of Education to the State Superintendent of Public Instruction, a recently elected Republican.

Further preliminary injunction arguments in each case will be heard by the three-judge panels at 9:30 a.m. today and Friday, respectively. Under North Carolina law, three-judge panels decide constitutional challenges to state laws.

Both of the laws have been criticized as partisan power grabs to keep newly elected Democratic Governor Roy Cooper from having much control, though Republicans have described them as attempts to level the playing field.

‘A bedrock principle’

Cooper filed a lawsuit against legislative leaders Phil Berger and Tim Moore just before the end of the year challenging the constitutionality of the first part of Senate Bill 4, which abolishes the current Board of Elections and creates a new bipartisan agency that would oversee elections, campaign finance and lobbying.

He said in the suit that the separation of powers in the North Carolina Constitution “is a bedrock principle the founders used to structure our state government.”

“Those changes are unconstitutional because they violate the separation of powers provisions enshrined in the North Carolina Constitution by shifting control over that agency away from the Governor to the General Assembly,” the 19-page complaint states.

The law was to take effect Sunday before Stephens blocked it.

Before Senate Bill 4, the State Board of Elections consisted of five members appointed by the governor, with no more than three members from one political party.

The new law would abolish the current State Board of Elections and the State Ethics Commission and replace them with a single board tasked with administering all of the state’s elections and ethics laws.

The new board would consist of four Republicans and four Democrats. Cooper, according to Senate Bill 4, would be responsible for appointing four of the members, two Republicans and two Democrats, and legislative leaders would appoint the other four members.

The new members would begin July 1 with the current State Ethics Commission members holding the seats until then.

“Though they claim to have created a ‘bipartisan’ state board and ‘bipartisan’ county boards, Defendants have in fact created a New State Board and county boards that are designed to neuter the State’s elections oversight capabilities and prevent Gov.-elect Cooper and the executive branch from faithfully executing the State’s elections laws,” the lawsuit states.

The court file was unavailable this week because it had already been pulled for the Thursday hearing, according to a clerk at the Wake County Courthouse. It is not known if defendants Berger and Moore filed a response.

Berger previously said in a statement released to the news media that Cooper’s effort to stop the creation of the bipartisan election board does not serve the best interest of North Carolina.

School Board ‘powers and duties’

Similar to Cooper, the State Board of Education filed a lawsuit against the state of North Carolina just before the New Year setting forth a constitutional argument against one of the laws quickly pushed through the same surprise special session.

The 13-page complaint states that Article IX, Section 5 of the North Carolina Constitution expressly confers certain “powers and duties” on the Board. It also states that it was the first time in the Board’s 148-year history the General Assembly has tried to transfer those powers and duties from the Board to an individual.

“The members of the Board swore an oath to support and maintain the North Carolina Constitution,” the suit states. “They also swore an oath to faithfully discharge the duties of their office, which include supervising and administering North Carolina’s $10 billion public school system in the best interests of its 1.5 million students. Compelled by those duties to the people of North Carolina, the Board brings this action for declaratory and injunctive relief.”

University of North Carolina Law Professor Michael Gerhardt, a constitutional law expert, said the Board of Education’s lawsuit has one of the strongest claims, “maybe the strongest claim,” which can be brought against the legislature’s recent actions.

“The legislature’s claim that its action is somehow fitting because it is an effort to empower the newly elected State Superintendent does not pass the straight face test – no one, I think, could take it seriously as a legitimate basis for legislative action,” Gerhardt said. “The law is exactly what it looks like – an effort to give a newly-elected Republican state official new powers at the expense of the State Board. In fact, the state constitution vests the principal authority over education in the State Board, which this new law plainly undermines.”

A response from defendant North Carolina in the case had not been filed as of Tuesday evening. In another statement, Berger said the Board of Education “should immediately drop this lawsuit, stop fighting to maintain a course that has been rejected by North Carolina voters, and instead start working with the elected Superintendent to improve our public schools.”

The judges and what’s next

In Cooper v. Berger, Martin appointed the following judges to hear and decide the case: Judge Jesse B. Caldwell III, who is registered to vote as a Democrat and presides in Gaston County; Judge L. Todd Burke, a Democrat who presides in Forsyth County; and Judge Jeffery B. Foster, a Republican who presides in Pitt County.

In North Carolina State Board of Education v. The State of North Carolina, Martin appointed Judge Forrest Donald Bridges, who is registered to vote as a Democrat and presides in Cleveland and Lincoln counties; Judge James F. Ammons Jr., a former Democrat now registered as unaffiliated who presides in Cumberland County; and Judge Martin B. McGee, a Republican who presides in Cabarrus County.

After hearing preliminary injunction arguments, the panels will decide whether the laws in question will be implemented during the course of a full trial challenging their constitutionality or if they will be blocked pending the outcome.

Once a case is decided in the lower court, the losing party can appeal to the state Court of Appeals. Before Senate Bill 4, cases with three-judge panels in the lower court had a direct right of appeal to the North Carolina Supreme Court. That right was eliminated at the special session, however, and the only way for a case to bypass the Court of Appeals now is for the Supreme Court to reach down and take the case.

“It wouldn’t be surprising for them to do so with these cases,” said Michael Crowell, a Chapel Hill attorney and former professor at the UNC School of Government.

He said both cases present a clear constitutional argument and have some sense of urgency, which creates an expectation of the high court to take them.

And if the cases do end up in the Court of Appeals first, things could get complicated, Crowell said. Another three-judge panel would usually hear an appeal, but Senate Bill 4 also changed that process by adding an en banc procedure, which means all 15 judges sitting on the bench could hear or re-hear the cases, likely creating a delay.

However, the rules for when a case could be heard en banc have not yet been decided, which leaves the fate of both cases unclear.

The Court of Appeals currently has an 11-4 Republican majority, compared to the Supreme Court, which has 4-3 Democratic control.

Depending on the outcome if the cases are heard by the Court of Appeals, they could subsequently be taken up in the state Supreme Court and possibly the U.S. Supreme Court after that, which could take months or years and certainly quite a bit of taxpayer dollars.

“It varies a great deal,” Crowell said of the timeline for cases to shake out.