Cooper v. Berger et al.

At the Federalist Society’s Docket Watch blog, Raleigh Attorney Andrew Brown has posted a nice summary of recent litigation over the proposed judicial selection amendment. Here are some excerpts:

“A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”  So reads Article 1, Section 35 of the North Carolina Constitution.  Perhaps nowhere has North Carolina applied this maxim more frequently as of late than to the very institution charged with guarding the principle—its courts. …

The most recent potential change to North Carolina’s courts has come in the form of a proposed constitutional amendment that would alter how the state fills judicial vacancies between elections.  Since Reconstruction, North Carolina has selected its judges by election.  However, governors have long held the power to make appointments to vacant judicial seats.  Although appointees must run in the next even-year election to keep the seat, one should not underestimate the import of the appointment power: a recent analysis of election results from 2008-2014 revealed that approximately 90% of judicial appointees later won election to full terms.

In contrast to the current gubernatorial appointment model, the proposed amendment would create a “Nonpartisan Judicial Merit Commission” charged with receiving public nominations for judicial vacancies and then rating the nominees as qualified or not under state law “without regard to the nominee’s partisan affiliation.”  The Commission’s evaluations would then be forwarded to the General Assembly, which, in turn, would recommend at least two of the “qualified” nominees to the Governor.  The Governor would then have ten days to make the appointment; otherwise the General Assembly could do so.

In addition to drafting the proposed amendment itself, the General Assembly also drafted the language that will appear on the ballot to present the amendment to voters (the “Ballot Question”). …

On August 5th, Governor Roy Cooper filed a lawsuit alleging, among other things, that the Ballot Question for the judicial vacancy amendment was constitutionally invalid because it failed “to describe [the] proposed amendment on the ballot in fair and accurate terms.”  Driven by imminent deadlines for printing and distributing ballots, litigation proceeded quickly. 

On August 21, a three-judge panel[4] issued a 2-1 decision granting the Governor’s Motion for Preliminary Injunction (here at 122-152). …

Although emergency appeals ensued, the legislature promptly reconvened to address the court’s order.  On August 27th, the legislature approved new a Ballot Question for the amendment. ...

The Governor immediately filed motions to amend the complaint and for a temporary restraining order.  After a hearing, the panel issued a unanimous decision (here at 337-351) on Friday, August 31 concluding that while perhaps not perfect, the new Ballot Question was not so misleading as to be facially unconstitutional beyond a reasonable doubt.  Accordingly, the court denied the Governor’s motion for a temporary restraining order.

The parties immediately appealed the Order directly to the state supreme court.  On Tuesday, September 4th, the Supreme Court issued an order unanimously affirming the trial court’s decision and allowing the proposed language to appear on the November ballot. 

Thus, North Carolina voters will have the opportunity to recur to fundamental principles about judicial selection this fall.  Whether that recurrence will result in a change that helps secure the blessings of liberty, however, will surely continue to be a topic of much discussion and litigation going forward. [Footnotes omitted.]

There’s lots more detail in the post itself, so read the whole thing!

Jon Guze / Senior Fellow, Legal Studies

Jon Guze is the Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over twent...