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Republicans Pitch Keeping Court Of Appeals At 15 Judges

In the N.C. Senate Judiciary Committee Tuesday morning. Lawmakers were set to will consider a bill to restore the Court of Appeals to 15 judges. Republicans had reduced the bench from 15 to 12, two years ago.
Jeff Tiberii

Some North Carolina Republicans now want to give up on the law they approved two years ago that reduces the number of Court of Appeals judges from 15 to 12 as retirements and other vacancies arise.

A state Senate judiciary committee Tuesday recommended unanimously a bill that would keep the court's size at 15 after all. Bill sponsors say the measure, if agreed to by the full General Assembly, should end as moot a lawsuit filed by Democratic Gov. Roy Cooper challenging the 2017 law.

A trial-judge panel actually sided with Republicans last year in upholding the law, but the state Supreme Court scheduled oral arguments in the case for March 4. With registered Democrats comprising a strong majority on the Supreme Court, there's uncertainty about whether they'll be inclined to uphold the law.

"I think we still feel the rationale for the bill was appropriate, but this will end the lawsuit with the governor, and so that's why we're going forward with it," said Sen. Warren Daniel, a Burke County Republican and a chief bill sponsor.

The law is one of several approved by the GOP-dominated legislature since December 2016 — just before Cooper took office — that have eroded Cooper's powers. In this case, it would prevent Cooper from filling three vacancies when they occur, because the seat would be simply eliminated.

No vacancies have occurred on the intermediate-level court since the law took effect, but the first could come next month. Court of Appeals Judge Bob Hunter, a registered Republican, must step down March 31 after meeting the state-mandated judicial retirement age of 72 the day before.

Complicating matters, according to Daniel, is that Cooper still must fill a current vacancy on the seven-member state Supreme Court. That's part of the musical chairs involved with the announced resignation of Chief Justice Mark Martin next week.

Daniel said Cooper "may be considering" elevating a current Court of Appeals member to become an associate justice but is reluctant to do so because it would prompt a vacancy, thus eliminating that seat, too. That could lead to more litigation.

Supporters of the 2017 measure argued then that the court could withstand the reduction to 12 judges, citing data showing lower caseloads and a simultaneous decision to shift other complex cases to the Supreme Court. But critics worried that it would undo recently strides to reduce adjudication wait times for the court.

"I'm glad to see that we're going to have a full bench of judges able to continue the expeditious review of these cases," said Sen. Floyd McKissick, a Durham County Democrat, said of the new measure during committee debate.

The bill still must be approved by the full Senate and House before it would go to Cooper's desk. Daniel said House Republican leadership is aware of the measure but doesn't know whether the chamber's GOP caucus backs the bill.

Last April, a majority of trial judges hearing the case sided with Republicans, saying the state constitution gives the General Assembly the power to determine the "structure, organization and composition" of the court. Cooper's attorneys argued the constitution mandates eight-year terms for the Court of Appeals, even if the incumbent steps down.

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