Constitutional challenges, especially over the last year, have been highly politically charged in North Carolina and the three-judge panels appointed to hear those cases wield a lot of power with little transparency as to how they got it.
Those panels, appointed by the chief justice of the state Supreme Court, help decide the fate of major issues that affect all North Carolinians, including the how much power the governor wields, who controls the public school system’s $10 billion budget and even the basics of who represents North Carolinians in Congress and the General Assembly.
There have been at least 30 constitutional challenges to laws enacted by the General Assembly in state court over the past four years, according to information from Wake County court officials.
The basic process of assigning three-judge panels is generally spelled out in the law but generally not well-known to the public.
Any legal action that constitutes a facial constitutional challenge to the validity of a state law or any legal action challenging redistricting plans are required to be filed in or transferred to Wake County Superior Court to be heard by a three-judge panel appointed by the chief justice, who is currently Mark Martin.
Aside from a few rules Martin must abide by, the law does not directly address the appointment process. Does he draw straws? Does he hand-pick judges? Is there a rotation for three-judge panels? Are there rules for how many times a judge can serve on a three-judge panel?
The law is unclear.
It does, however, give those panels the sole authority at the trial court level to issue an order or judgment affecting the validity of General Assembly actions — and even though the appellate process often provides the final word on those challenges, many don’t make it that far.
Here is a breakdown of the parts of the appointment process that are clear — without all the legalese:
Challenges involving redistricting plans:
- A lawsuit challenging the constitutionality of General Assembly redistricting plans is filed in Wake County Superior Court.
- A copy of the lawsuit is given to the senior resident superior court judge of Wake County, who serves as the presiding judge in the case.
- That judge notifies the chief justice of the Supreme Court to make two more appointments to the panel.
- The chief justice confers with the North Carolina Conference of Superior Court Judges, which provides a list of recommended appointments.
- To ensure members of the panel are from different regions of the state, one appointed superior court judge must be from somewhere within the first through fourth judicial divisions (which encompasses the east and part of central North Carolina) and the second is to be from somewhere within the fifth through eighth judicial divisions (which encompasses the west and the other part of central North Carolina).
- To ensure “fairness, to avoid the appearance of impropriety, and to avoid political bias,” no member of the panel may be a former member of the General Assembly.
- If the Wake County senior resident superior court judge is unable to serve on the panel for any reason, the chief justice will appoint another superior court judge from that county to preside. The chief justice can also appoint replacement judges from the same judicial divisions should any of the others not be able to serve on the panel.
Facial challenges to the validity of an act of the General Assembly:
- All such lawsuits are filed in or transferred to Wake County Superior Court.
- The chief justice appoints three superior court judges to hear the challenge in Wake County.
- To ensure that judges represent different regions of the state, one superior court judge must be from the first, second, or fourth judicial division (see a map here), one must be from the seventh or eighth judicial division and one must be from the third, fifth, or sixth division.
- If a judge cannot serve on the panel for any reason or is removed at the chief justice’s discretion, the chief justice can replace them with a judge from the same judicial division.
Click here for more information on the structure of the North Carolina Court System and the division of authority and responsibility amongst the various state judicial branches.
Constitutional Challenges
These are the known constitutional challenges that fall under statutes providing for the appointment of three-judge panels. This information was compiled by Kellie Myers, Wake County trial court coordinator, with some additions by NC Policy Watch for updated information. Myers last updated the list in Dec. 2017. There may be some missing information from the court.| Case | Originating County | Referred to a 3-judge panel? | Challenge(s) | Date of order from Chief Justice | Designated judges *denotes lead judge | Disposition/Appeals |
|---|---|---|---|---|---|---|
| Boone v. State | Watauga | Yes, on 10/14/13 -- by Watauga County superior court judge | Session law 2014-33: An act providing that the town of Boone shall not exercise the powers of extraterritorial jurisdiction | 11/3/2014 | Paul Ridgeway* Nathaniel Poovey Alma Hinton | Summary judgement for plaintiff on 07/29/2015 |
| McCrory v. Berger | Wake | Yes, in December 2014 -- by (now retired) Judge Donald Stephens | Energy Modernization Act and coal ash management | 12/4/2014 | Howard Manning Jr.* Rusty Duke Yvonne Mims Evans | Judgement in favor of plaintiffs -- law ruled unconstitutional 03/16/2015 Appealed to NC Supreme Court |
| Wilson v. NC Department of Commerce | Wake | Yes, on 06/04/2015 -- by Judge Paul Ridgeway | Senate Bill 42: An act to clarify the confidentiality of unemployment compensation records | 6/17/2015 | A. Graham Shirley* Marvin Blount Lisa Bell | Summary judgement granted for defendant on 07/19/2016 |
| Haw River Assembly and Keely Wood Puricz v. Vikram Rao, et al. | Wake | STAYED | G.S. 143B-293.1, which governs appointments to the NC Mining and Energy Commission | Stayed by (now retired) Judge Donald Stephens on 05/07/2015 pending outcome of appeal in McCrory v. Berger | ||
| Faires, et al. v. State Board of Elections | Wake | Yes, in December 2014 -- by (now retired) Judge Donald Stephens | Session Law 2015-66, which provides for justices of the NC Supreme Court to be subject to a referendum on retention in office after the conclusion of the justice's first elected term of office | 12/4/2015 | Anna Mills Wagoner* Benjamin G. Alford Lisa Bell | Hearing held on 02/16/2016; summary judgement granted in favor of plaintiffs; order filed 03/04/2016 Appealed to NC Supreme Court on 03/09/2016 |
| Samuel L. Jackson v. Matthew Scott Diggs | Wake | No | Alienation of Affection and Criminal Conversation - limitations on claims pursuant to NCGS § 52-13 | |||
| William Bunch, III v. Lisa Britton | Wake | No | Sex offender registry | State 's Motion to Dismiss granted 12/04/2015 | ||
| Clean Water for NC v. NC Mining and Energy Commission | Wake | STAYED | G.S. 143B-293.2, which governs appointments to the NC Mining and Energy Commission | State's Motion to Stay granted 08/26/2015 | ||
| PETA v. NC, et al. | Wake | Yes, on 12/29/2015 -- by (now retired) Judge Donald Stephens | 2015 act relating to using live opossums on New Year's Eve | 1/6/2016 | Forrest D. Bridges* Tanya Wallace Stuart Albright | Summary judgement granted for defendants |
| Ryan E. Pollard and Ashley A. Pollard v. Matthew A. Huber and Brian E. Huber | Durham | Yes, on 02/18/2016 -- by Patrice A. Hinnant | Rule 414 of the NC Rules of Evidence and 2011 amendments to G.S. 858.1 (limitation on presentation of medical bills) | 3/7/2016 | G. Bryan Collins* Claire Hill William H. Coward | Plaintiff's motion for summary judgment denied on 06/17/2016 |
| Walters et al. v. State of NC and William West, District Attorney | Wake | Yes, on 06/15/2016 -- by (now retired) Judge Donald Stephens | Racial Justice Act | 8/19/2016 | W. Osmond Smith III* Quentin Sumner Nathaniel Poovey | Plaintiffs filed voluntary dismissal on 12/19/2016 |
| D&D Partners of Winston Salem, T/A Club Risque v. NC ABC Commission | Guilford | Yes, on 03/21/2016 -- by Judge Lindsay R. Davis Jr. | G.S. 18B-904(e)(4) - ABC Commission/30-day automatic suspension of permit | Thomas H. Lock* Kevin M. Bridges W. Robert Bell | ||
| NC State Board of Education v. State of NC and NC Rules Review Commission | Wake | No -- Court of Appeals dismissed, said it should have gone to three-judge panel | The state Court of Appeals dismissed an appeal, noting that it was without jurisdiction to hear the appeal because the appeal lies of right directly to the Supreme Court from any order or judgment that holds an Act of the General Assembly is facially invalid as a constitutional violation under G.S. 7A-27(a1). | |||
| n the Matter of Hughes et al (COA 15699); In the Matter of Redmond et al (COA 15763); In the Matter of Smith (COA 15-829) (consolidated) | Industrial Commission | On remand to state Court of Appeals | Eugenics Compensation cases | The opinions were appealed to the state Supreme Court and are pending pursuant to a petition | ||
| Bertie County Board of Education, et al v. State Treasurer of NC, NC State Budget Director, et al | Wake | No | Session Law 2011-145 added (4b) to G.S. 7A-304 to remit $50 improper equipment fees to Department of Correction -- violation of Art. IX, Sect. 7(a) of NC Constitution | |||
| Anson County Board of Education, et al v. State Treasurer of NC, NC State Budget Director, et al | Wake | No | Session Law 2011-145 added (4b) to G.S. 7A-304 to remit $50 improper equipment fees to Department of Correction -- violation of Art. IX, Sect. 7(a) of NC Constitution | |||
| Nour v. Lost Treasure Gold | Wake | Pending review | UNCLEAR: Plaintiff appears to challenge the constitutionality of Rule 414 of the North Carolina Rules of Evidence and 2011 amendments to G.S. 8-58.1. | |||
| Sanders v. Donald E. Harrison (WCSO), et al | Wake | STAYED on 06/21/2016 pending determination of liability; then to 3-judge panel if necessary; assigned to Judge Robert Hobgood under LR2.2 | G.S. 90-21.19, liability limit for noneconomic damages | |||
| Cooper v. Berger & Moore #1 | Wake | Yes, on 12/30/2016 -- by (now retired) Judge Donald Stephens | Separation of powers issues with Board of Elections changes, Senate advise and consent for gubernatorial appointees and exempt gubernatorial positions | 1/3/2017 | Jesse B. Caldwell III* L. Todd Burke Jeffery B. Foster | First Issue: Board of Elections -- Plaintiff's motion for summary judgement granted (unanimous) Second Issue: Advice and Consent -- Plaintiff's motion for summary judgement denied (Caldwell and Foster concur; Burke dissents) Third Issue: Exempt Positions -- Plaintiff's motion for summary judgement granted (Caldwell and Burke concur; Foster dissents) The state Court of Appeals affirmed the 3-judge panel's decision on Advice and Consent (Issue 2) on 11/07/2017 |
| NC State Board of Education v. State of NC and Mark Johnson, in his official capacity | Wake | Yes, on 12/30/2016 -- by (now retired) Judge Donald Stephens | Transfer of power from the Board of Education to Superintendent Mark Johnson | 1/3/2017 | Forrest D. Bridges* James F. Ammons Jr. Martin B. McGee | Summary judgement granted to defendants Case is on appeal |
| Rivera v. Trembly | Wake | Yes, on 4/18/2017 -- by (now retired) Judge Donald Stephens | Rule 414 of the NC Rules of Evidence and 2011 amendments to NCGS § 858.1 (limitation on presentation of medical bills) | 4/21/2017 | G. Bryan Collins* Claire Hill William H. Coward | Settled prior to 3-judge panel meeting |
| Cooper v. Berger, Moore and NC #2 | Wake | Yes, on 4/26/2017 -- by (now retired) Judge Donald Stephens | Session Law 2017-6: Board of Elections/State Ethics Board changes | 4/27/2017 | Jesse B. Caldwell III* L. Todd Burke Jeffery B. Foster | Defendants' motion to dismiss granted |
| Cohen v. City of Raleigh | Wake | STAYED pending outcome on liability | Rule 414 of the NC Rules of Evidence and 2011 amendments to G.S. 858.1 (limitation on presentation of medical bills) | |||
| Common Cause v. Daniel Forest, Timothy Moore and Philip Berger | Wake | Yes, on 8/1/2017 -- by Judge W. Osmand Smith III | Session Law 2016-125 and Session Law 2016-126 challenging the manner by which the GA called the 4th Extra Session and voted | 9/13/2017 | Wayland J. Sermons* Martin B. McGee Todd Pomeroy | |
| Salisbury Ridge v. NCABC Commission | Gaston | Yes, on 11/28/2016 -- by Judge Jesse B. Caldwell | ||||
| Cooper v. Berger #3 | Wake | Yes, on 11/16/2017 -- by Judge Paul Ridgeway | Section 1 of Session Law 2017-7 (Reducing the Size of the Court of Appeals); G.S. 143B-135.240 (Clean Water Management Trust Fund); G.S. 143B-168.4 (Child Care Commission); G.S. 143-135.25 (State Building Commission); G.S. 143B-135.202 (N.C. Parks and Recreation Authority); G.S. 143B472.128 (Rural Infrastructure Authority); G.S. 74C-4 (Private Protective Services Board); Section 6.6.(b) of Session Law 2017-57 (Voucher Mandate) | 11/20/2017 | Henry Hight Jr. Jay Hockenbury Nathaniel J. Poovey | |
| Russell v. Woodie | Union | Yes, on 5/24/2017 -- by Judge Christopher Bragg | G.S. 14-190.5A: revenge porn | |||
| Craft Freedom, LLC | Wake | Craft breweries/cap | ||||
| Carver v. Elliott | Forsyth | Alienation of Affection: Unclear as to the act of the General Assembly being challenged -- waiting on response from counsel | ||||
| Moore v. Moore | Guilford | Yes, by district court Judge Jon Kreider | G.S. 50-13.2(b1) -- Grandparent visitation raised in motion to intervene |
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